Majority
p. 666(20 Misc. Rep. 508.) ECKENROTH et al. v. EGAN et al. (Supreme Court, Special Term, New York County. June, 1897.)
Headnote
Consolidation of Actions.A motion to consolidate actions, made either under section 18 of the mechanic’s lien law (Laws 1885, c. 342) or under section 817, Code Civ. Proc., must be made before trial.
Action by Francis Eckenroth and others against Ellen Egan and others.
Motion to consolidate actions denied.
Wilson, Barker & Wilson, for the motion.
Henry Schmitt, opposed.
The provisions of section 18 of chapter 342 of the Laws of 1885 (Mechanic’s Lien Law) are no broader than section 817 of the Code of Civil Procedure. Both authorize the court to consolidate, in its discretion, two or more actions. It has frequently
p. 667
been held under section 817 that the motion to consolidate must be made before trial. Bank v. Hay, 8 Daly, 328 , affirmed without opinion by the court of appeals, 73 N. Y. 609 . By the motion now before me it is sought to consolidate an action that has been partly tried with one in which, the issues have just been joined. I think the motion comes too late. The parties to an action have the right to participate in all of the trial, and that right is not preserved to them by a provision in the order of consolidation to the effect that the testimony already given and exceptions taken stand subject to the right of both parties to recall and re-examine any of said witnesses who have testified. Motion to consolidate denied, with $10 costs.
Motion denied, with $10 costs.
Cases cited
- Gildersleeve v. Landon 73 N. Y. 609 p. 667