Wyant v. Jensen — 25 A.D.2d 388

Majority

p. 388

Edward E. Wyant et al., Respondents, v. Emil L. Jensen, Jr., Appellant. (Action No. 1.) Frank Kouhout, Jr., et al., Respondents, v. Frederick J. Wenz et al., Appellants. (Action No. 2.)

Third Department,

May 20, 1966.

Cook, Tucker & Dwyer (Vernon Murphy of counsel), for appellants.

Norman Kellar for respondents.

This is an appeal from an order of the Supreme Court, Ulster County, granting respondents’ application that the two above-entitled actions be tried together without consolidation (CPLR 602, subd. [a]).

Catherine Wyant seeks recovery for injuries allegedly resulting from separate automobile accidents occurring respectively on June 16,1963 (Action No. 2) and June 21,1963 (Action No. 1). The Trial Judge concluding that there were common questions of fact involved and that the actions could be ‘ ‘ tried together in the interests of justice without consolidation and without prejudice to a substantial right ” ordered a joint trial pursuant to CPLR 602 (subd. [a]). We can find no reason to disturb this discretionary determination. Rather, since there appears no clear showing of prejudice and particularly since only five days separate the two accidents, there are many reasons why the

p. 389

actions should be tried together (Potter v. Clark, 19 A D 2d 585 ; 2 Weinstein-Korn-Miller, N. Y. Civ. Prac., pars. 602.01-602.19).

The order should be affirmed.

Gibson, P. J., Heklihy, Taylor and Atjlisi, JJ., concur.

Order affirmed, with costs.