Majority
p. 367MAYOR v. MAYOR. N. Y. Court of Appeals ; October, 1882.
Headnote
Consolidation of Actions.Two actions for partition of lands in different counties cannot be consolidated where some of the defendants in one action are not parties to the other, and have no interest in the subject of the latter action.
Appeal from an order of the general term of the supreme court for the second judicial department, affirming an order of the special term consolidating two actions for the partition of real property.
Two actions were commenced in the supreme court by Benjamin A. Mayor, for the partition of certain lands of which his father, Pierre A. Mayor, died seized ; the one action was brought to partition lands situated in the city and county of New York, and the other to
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partition property situated in the county of Kings. The actions were brought in the counties in which the respective pieces of property were situated.
The defendants in both actions were the same, except that in the New York action, George Lane and Mary J. Lane, his wife, were made parties, the former being owner of an undivided half of the property involved in the suit, but having no interest in the Kings county property.
Another action was brought at the same time in the city and county of New York, by the same plaintiff, against Benjamin L. Coffin and Richard T. Edwards, executors under his father’s will, for an accounting, said Coffin and Edwards being also, as executors, defendants in both partition suits.
Before issue was joined, a motion was made by defendants Coffin and Edwards to consolidate the two actions pending in New York county into the action pending in Kings county. The defendant, Annie E. Mayor, an infant, appeared in both partition actions by guardian ad litem, and favored the consolidation. The plaintiff and defendants Lane opposed. The motion was granted as to the two partition actions, but denied as to the action for an accounting. The plaintiff appealed from the order entered thereon to the general term, where it was affirmed, and from such order of affirmance took this appeal to the court of appeals.
Edmond Huerstel, for appellant.
David Barnett, for respondents.
A. Simis, Jr., guardian ad litem, for defendant, Annie E. Mayor.
The order of consolidation must be reversed, because the special authority to consolidate actions is given by section 817 of the Code, and permits it only where both actions are pending between the same plaintiff and the same defendants for causes of
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action which might have been joined. That is not the case here. The actions were forpaitition. The subject of one action was land in the city and county of New York, and of the other, land in the county of Kings ; and two of the defendants, Lane and wife, in the New York action, were not parties to the Kings county action, and had no interest in the subject of the latter action. By the consolidation they are exposed to the possible costs and expenses and the delays of a litigation in another county in which they have no interest. In such a case the consolidation does not consolidate. The two actions remain two, and cannot become one. All that is effected is an improper change of the place of trial from New York to Kings county and a concurrent trial of two actions, having neither the same parties, nor the same subject of action. The Code does not authorize such a proceeding.
The order of the general term and of the special term should be reversed, with costs.
All the judges concurred, except Raparlo, J., absent.