Gorpel v. Robinson Machine Co. — 118 A.D. 160

Majority

p. 160

Charles F. Gorpel, Appellant, v. Robinson Machine Company, Respondent.

First Department,

March 8, 1907.

Headnote

Practice — when actions should he consolidated — payment of costs by defendant- — when attachment in consolidated action should not be vacated.

An action upon a promissory note brought in the City Court of New York should be consolidated with a prior action upon a promissory note brought in the Supreme Court when the only grounds upon which the consolidation is resisted is the possibility that the plaintiff may get his case upon the short calendar of the City Court and obtain an earlier trial.

p. 161

On such consolidation, however, the defendant should pay the costs in the City Court, and an attachment granted in that court should not be vacated even . though the plaintiff has obtained security in the prior action in the Supreme Court. .

Appeal by the plaintiff, Charles F. Goepel, from an order of the Supreme Court, made at the" New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of January, 1907, removing an action from the City Court of the city of New York and consolidating it with the above-entitled action in the Supreme Court and vacating an attachment in the City Court action upon the ground that said attachment became merged with the attachment issued out of the Supreme Court..

Peter B. Olney, Jr., for the appellant.

Philip K. Walcott, for the respondent.

The actions in this court and in the City Court were upon promissory notes made by the defendant. The action in this court was commenced on Rovember 9, 1906, and in the City Court on the 7th of December, 1906. There is no reason suggested why these actions should not be consolidated, except that the plaintiff may be able to get the case in the City Court upon the short calendar and have the case tried before the action can be triéd in the Supreme Court. The action, however, can be disposed of within a reasonable time in this court, and the controversy upon these notes should be disposed of in one action. The defendant, however, should pay the costs in the City Court action and the attachment granted in the City Court should not have been vacated.

Tlie plaintiff is entitled to the same security for the payment of any judgment to which he will be entitled in the consolidated action that he had in the two actions which were consolidated. The fact that the plaintiff had obtained security in the action commenced in this court is no reason why he should be deprived of the security that he has obtained in the City Court action.

I think, therefore, that the order appealed from should be modi

p. 162

fied by requiring as, a condition of the consolidation 'that the defendant pay the costs in the City Court action and that the provision vacating the attachment granted in the City Court be stricken out, and as thus modified affirmed, without costs.

Patterson, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Order modified as directed in opinion and as modified affirmed, without costs. Settle order on notice.