Sire v. Kneuper — 22 Abb. N. Cas. 62

Majority

p. 62

SIRE v. KNEUPER.

New York Common Pleas, Special Term ;

November, 1888.

Headnote

•Consolidation; removal from dists'ict court to common pisas. ] Code Civ. Pro. § 818,—providing that the supreme court, when an action is pending there, may remove an action pending in another court into the supreme court for consolidation,—is made applicable to all courts of record by § 3347, subd. 6,^[1] and the court of common1 pleas may remove an action brought in a district court of New York city into the common pleas, for the purpose of consolidating the cause of action with one pending in the common pleas,^[2]

Motion to remove an action pending in one of the district courts in the city of New York into the court of •common pleas, for the purpose of consolidating with an action pending there.

An action was commenced in a district court of N. Y. •city to recover $116.66 for rent for the month of October,

p. 63

1888, which, after issue joined, was removed into the common pleas. Plaintiff then brought another action in the same district court against the same defendant to recover $91:66 rent for the month of November, 1888.

The defendant then moved that the last action be removed into, the common pleas, to be there consolidated for trial with the first action.

J. C. Julius Langbein (Langbein Bros, & Langbein, attorneys),

for the defendant and the motion, made and argued the following points:

First Point: This court has power to grant the motion, the two actions being in favor of the same plaintiff against the same defendant for causes of action which may be joined as provided by sections 817 and 818 of the Code of Civil Procedure.

Section 817. “ Where two or more actions, in favor of the same plaintiff against the same defendant, for causes of action which may be joined, are pending id the same court, the court may, in its discretion, by order, consolidate any or all of them into one action.”

Section 818. “ Where one of the actions is pending in the supreme court, and. another is pending in another court, the supreme court may, by order, remove to itself the action in’ the other court, and consolidate it with that in the supreme court.”

These two sections of the Code apply to all courts of record (Code Civ. Pro. § 3347, subd. 6).

This latter section, in defining the power of the other courts, provides that sections 817 and 818 “apply to all courts, of record,” and as this court is a court. of record (Code Civ. Pro. § 2) section 818, is by construction, to be read as if the words “ The court of common pleas for the City and County of New York” had been inserted in that section, instead of the words, “ supreme court.” Similar motions were made in the supreme and in the city (late marine) court of New York, and both were granted

p. 64

(Soloman v. Belden, 12 Abb. N. C. 58 ; McKay v. Reed, Id. 58 , n. ; s. c., 1 City Ct. R. 464).

Thus we see that this court has power to make the order asked for, but in addition we show that by section 3343 of the Code, subdivision 1, this court is made one of the “ Superior City Courts,” and by section 267 of the Code, the jurisdiction of aSuperior City Court ” is made co-extensive with that of the supreme court.

Second Point: The oral pleadings in the two actions, as shown by the affidavit of the defendant on this motion, sufficiently set forth the facts necessary to bring this motion within the two sections of the Code under which it is made.

I. The rents claimed in both actions accrued and are due under a lease made by the defendant. They are actions that may be joined in one or the same complaint, under section 484 of the Code. They are both between the same parties, plaintiff and defendant, and upon contracts, both being for rent alleged to be due, and both are at issue ; the defenses are the same in both actions. Courts do not favor multiplicity of actions, and hence the legislature wisely passed sections 817 and 818, and the granting of this motion “ will not only result in a saving of time and expense to the parties, but it will relieve courts and jurors from the useless burden of twice investigating the same matter,” as was well said by Chief Justice Bronson in Wilkinson v. Johnson, 4 Hill, 46 , 48.

II. Defendant’s affidavit shows that he is harrassed and annoyed by the second action. The consolidation will prevent this.

Chief Justice Savage says that the object of the provision of -law for consolidation of actions is, “ to prevent oppression by the unnecessary accumulation of costs” (Brewster v. Stewart, 3 Wend. 441 ).

As the lease under which the rent is claimed does not expire until May next, it is evident from what has already occurred that every month’s rent, as it falls due, will be sued for in a separate action. This is just what the courts will

p. 65

prevent by a consolidation, in order that the defendant will no longer be harrassed and annoyed, and in order that courts and jurors (as already stated) will be relieved from the useless burden of twice or thrice investigating the same matter.

III. The mere fact that the months for xvhich the rents are claimed are different, and that the second action could not be brought when the first one was, makes no difference whatsoever on this motion, because consolidation will be made not only where both suits are brought at the same time, but where they are brought at different times ; and it will not be a sufficient objection that the second cause of action had not accrued at the time the first suit was commenced (Dunning v. Bank of Auburn, 19 Wend. 23 ; Brewster v. Stewart, 3 Id. 441; Oldershaw v. Tregwell, 3 Carr, & P. 58).

Walton C. Dupignac and Albert I. Sire,

for plaintiff, contended that this court had no power to make the order applied for.

Section 818 of the Code in terms applies to the supreme court alone, but section 3347 extends the provision to all courts of record (Soloman v. Belden, 12 Abb. N. C. 58 ; McKay v. Reed, 12 Id. 58 , n.). The same result would seem to follow from section 3343,. subdivision 1, which declares this court one of the superior courts of cities, and from section 267, which declares the-jurisdiction of such courts to be co-extensive with that ok the supreme court. The actions and defenses in both cases-being the same, they should be consolidated, and the motion is therefore granted.

Ordered accordingly.

Cases cited

Brewster v. Stewart 3 Wend. 441 N.Y. Sup. Ct. p. 64
Dunning v. Bank of Auburn 19 Wend. 23 N.Y. Sup. Ct. p. 65