Martin v. Bull — 236 A.D. 637

Majority

p. 637

Minnie W. Martin, Appellant, v. Henry W. Bull and Others, Copartners Doing Business as Harriman & Company, Respondents.

First Department,

December 9, 1932.

p. 638

Victor E. Cappa of counsel [Knowlton Durham, attorney], for the appellant.

George J. McDonnell of counsel [McDonnell & Lebett, attorneys], for the respondents.

The plaintiff is entitled to a consolidation of these actions, so that the whole matter may be disposed of at one trial. If the plaintiff herein should successfully establish the counterclaim which was interposed in the Municipal Court action in which she is defendant, the recovery would be limited to the sum of $1,000 (Mun. Ct. Code, § 86).

Where it is apparent that there is no merit in a counterclaim, an application to consolidate should be denied. However, on the record before us, we cannot say that this is such a case. At the trial the defendant should be given the right to open and close.

The order should be reversed, with twenty dollars costs and disbursements, and the motion to consolidate granted, with ten. dollars costs.

Present — Finch, P. J., Merrell, Martin, Sherman and Townley, JJ.

Order reversed, with twenty dollars costs and disbursements, and motion to consolidate granted, with ten dollars costs.