Majority
Order, Supreme Court, New York County, entered May 4, 1976, denying plaintiffs motion, inter alia, for an order consolidating the within action with another pending in Queens County, and the order of said court, entered May 26, 1976, denying plaintiffs renewal motion, unanimously affirmed. Respondent shall recover of appellant $40 costs and disbursements of this appeal. Under the circumstances presented, we find no abuse of discretion by Special Term. While, technically, jurisdiction was first invoked in New York County, plaintiff served only a summons without notice. Shortly thereafter, defendant commenced an action in Queens County by service of a summons and complaint. The Supreme Court in Queens County has now consolidated these two actions and set the case down for trial. If plaintiff still desires a reference, he may seek such relief in the pending consolidated action. Concur—Markewich, J. P., Murphy, Lupiano, Birns and Nunez, JJ.