Pierce v. Lyon — 3 Hill & Den. 450

Majority

p. 450

Pierce and others vs. Lyon.

Headnote

An action having been brought on two promissory notes, copies of which were served with the declaration pursuant to rule 1st of May term 1841, the plaintiff before pica, sued the defendant again, declaring on an account which became due after the first suit was commenced; held, that a rule to consolidate ought not to be granted, inasmuch as it would enable the defendant to plead to the entire demand without an affidavit of mer'ts, and thus improperly delay the collection of the notes.

Otherwise, if the defendant had sworn that he intended to suffer judgment by default in bvth actions, or had offered to accompany any plea that might be interposed by such an affidavit as would have been necessary in pleading to the first action. Semble.

Consolidation. On the 22cl of June last, the plaintiffs commenced a suit against the defendant on two promissory notes, copies of which were served with the declaration together with a notice that they constituted the only cause of action on which the plaintiffs relied. On the 28th day of the same month the plaintiffs commenced a second suit against the defendant on an account for goods sold, &c. which became due on the 25th day of that month, after the first suit was commenced.

D. Burwell, for the defendant,

on an affidavit that the questions which would arise were substantially the same in both suits, moved that they be consolidated.

p. 451

F. Kinney, for the plaintiffs,

admitted that the motion might oe granted although the first suit was commenced before the debt for which the second action was brought became due. (Dunning v. Bank of Auburn, 19 Wend. 23 .) But he relied on the fact that there was no affidavit of a defence of any kind, and that, if the suits were consolidated, the defendant might delay the plaintiffs by putting in a plea without oath ; whereas, as to the first suit, the defendant could not plead without ail affidavit of merits or of the truth of the plea. ( 22 Wend. 644 , note, first rule of May term, 1840.)

As the second debt was not due when the first action was commenced, and as the effect of a consolidation might be to delay the collection of the notes, although there may be no defence in that action, I think the motion should be denied. If the defendant had sworn that he intended to suffer judgment to pass by default in both actions, or if he had offered to accompany any plea that he might put in with such an affidavit as would have been necessary on pleading to the first action alone, the motion might have been granted. [

Motion denied.

Cases cited

Dunning v. Bank of Auburn 19 Wend. 23 N.Y. Sup. Ct. p. 451