Hyperlawhypertext legal database WM. H. Frank Brewing Co. v. Mayor 46 N.Y.S. 24

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WM. H. Frank Brewing Co. v. Mayor

46 N.Y.S. 24 Court N.Y. App. Div. Decision date 1897-06-18 English

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p. 24
WM. H. FRANK BREWING CO. v. MAYOR, ETC., OF CITY OF NEW YORK.
(Supreme Court, Appellate Division, First Department.
June 18, 1897.)

Headnote

Costs—Separate Actions—-Consolidation.
Where separate actions are consolidated, on motion of defendant, after he has appeared and obtained extensions of time to plead, and has answers on file, plaintiff is entitled to costs in each action up to the time of consolidation.
Appeal from special term, New York county.
Five actions by the William H. Frank Brewing Company against the mayor, etc., of the city of New York, to recover hack different sums of money, representing the proportionate shares of excise license fees paid by plaintiff’s live several assignors for liquor licenses for the nnexpired terms which said licenses had to run after June 80, 1896, on which day, according to the provisions of the liquor tax law, said licenses became inoperative. Defendants appeared in each action, and obtained numerous extensions of time to plead; and a stipulation was entered into in each that short notice of trial be accepted, and that
p. 25
issue should be of the original date. Several months after the commencement of the actions, answers were filed, and were never withdrawn. Thereafter, on-affidavit that there was no defense, and on defendant’s motion, an order-was made consolidating the actions, and allowing ylaiutiff but one bill of costs in the five actions, and plaintiff appeals. Reversed.
Argued before VAN BRUNT, P. J., and RUMSEY, WILLIAMS, INGRAHAM, and PARKER, JJ.
M. Hallheimer, for appellant.
G. O’Reilly, for respondent.

It seems to us.that the plaintiff was entitled to-the costs which had accrued prior to the time of granting the motion for consolidation. The order consolidating the actions should therefore have given to the plaintiff the right to tax such costs in each action as had accrued up to the -time of the malting of the motion.

The order should therefore be reversed, without costs, and the motion for consolidation granted, as above stated, without costs.