Bush v. Abrahams — 18 N.Y. St. Rep. 919

Majority

p. 919

Frederick L. Bush and Another, as Executors, etc., Resp’ts, v. David Abrahams and Others, App’lts.

(City Court of New York, General Term,

Filed October 25, 1888.)

Headnote

Consolidation op actions—Code Civ Pao.. §§ 817-316—When allotted IN CITY COUNT.

Several actions may be consolidated in the city court of Hew Tprk, and a single judgment rendered for the aggregate amount of the several claims, provided the sum sued for in each action does not exceed $2,000.

Appeal from an order denying motion to consolidate five actions pending in this court between the same parties.

A motion was made by the defendants to consolidate five actions pending in this court between the same parties, all upon promissory notes, the claims aggregating about $5,500. The sum sued for in each action is less than $2,000. The motion was denied upon the ground that the statute has fixed the limit of jurisdiction of this court, and the parties may not enlarge it by consent. The defendants have consented in writing that they will not raise any objection if such consolidation is ordered, to any judgment herein which the plaintiffs may recover, provided the sum exceeds the sum of $2,000, and will not take any advantage of that point.

Horwitz & Hershfield, for app’lts (Wales F. Severence, of counsel); Louis Levi, for resp’ts (Samuel J. Brooks, of counsel).

Section 315 of the Code, relating to the jurisdiction of this court, is general in its provisions and does not limit this court in this jurisdiction of the subject-matter as to the amount claimed.

Section 316, however, provides that: “In an action wherein the complaint demands judgment for a sum of money only, the sum for which judgment is rendered in favor of the plaintiff cannot exceed $2,000, exclusive of interest and costs as taxed.”

In the case of Roof v. Meyer, 8 Civil Proc. Rep., 64, it was held by this court, that a claim for more than $2,000 does not oust the court of its jurisdiction, and that a judgment entered for more than that amount exclusive of interest and costs, is not threby rendered absolutely void, but may be corrected as an irregularity, being void merely as to the excess.

Section 817 of the Code provides: “Where two or more actions, in favor of the same plaintiff against the same defendant, for causes of action which may be joined, are pending in the same court; the court" may, in its discretion, by order, consolidate any or all of them, into one action.”

The plaintiffs contend that a consolidation of the five actions would be unjust to them, inasmuch as they would

p. 920

be compelled to relinquish $3,500 of their claims, that being the excess over the sum of $2,000 for which sum only they would then be entitled to enter judgment if successful upon the trial. If such would be the result of the consolidation, the order appealed from would, undoubtedly, be right and proper, and ought to be affirmed.

The sole question, then, upon this appeal, is, whether or not the plaintiffs would be prejudiced by the consolidation. In other words, whether, upon such consolidation, a judgment Could properly be entered by plaintiffs for the aggregate of his claims in the five actions, notwithstanding the limitation contained in section 316 of the Code (supra).

What is the object of the consolidation? Obviously, te avoid the necessity of the trial of several actions, when a determination may be reached in one, and to limit the plaintiff to one bill of costs thereafter. Much time and labor are thereby saved to the court and the litigants. It amounts practically to a change in the" mode of trial, disposing of several cases on one trial. This is frequently resorted to, when no order of consolidation has been made. Several actions are often, by stipulation, permitted to abide the result of one, and the disposition made of that one, disposes of all the others, without a separate trial of each. A consolidation produces essentially the same result, without the intervention of a stipulation between the parties, but by an order of the court.

What impropriety can there be, therefore, in directing the parties to do what they may accomplish by mutual consent? True, they may, in that case, enter but one judgment instead of several. But what practical difference does that make, whether a party have several judgments or whether his aggregate claims are combined in one ?

It seems to me that the various provisions of the Code should be so construed, that effect may be given to all. Those which may seem to conflict should, if possible, be harmonized so that the obvious intention of the legislature may not be thwarted, and irreconcilable provisions in our methods of procedure may be avoided.

"Viewed in this light, I think sections 817 and 316 may stand together, and effect may be given to both. In a single action, a judgment cannot be given for more than $2,000; but if several actions are combined for the con-' venience of trial, and to avoid the multiplication of costs, why should not the aggregate of the claims be put into one judgment instead of several % Suppose A brings ten suits against B on ten notes for $2,000 each. He may lawfully enter ten judgments, each for that amount. Was it the intention of the legislature that he should be precluded from consolidating the actions and entering one judgment

p. 921

for®$20,000 with one bill of costs instead of ten. The court evidently had jurisdiction of each of the ten suits for the full amount claimed, and, as was said by the court of appeals in the People v. Chapin (7 N. Y. State Rep., 213): “It is

a settled principle of law that where a judicial function is conferred, or power given, everything necessary to make it effectual or to attain the end is implied.”

Is it logical to say that the court lost its jurisdiction by the mere formal act of entering one judgment for $20,000, instead of ten judgments each for $2,000? It has been repeatedly held that when a court once has jurisdiction of the person and the subject matter, it cannot be divested of its jurisdiction by any acts of the parties.

The entry of judgment for more than $2,000 can at most be considered an irregularity. But if it be so construed, then a limitation is placed upon section 817, so far as this court is concerned, not contemplated by the framers of the Code; for in that case the provision concerning consolidations might as well not exist, and the court might as well include section 817 among the sections of the-Code inapplicable to this court as enumerated in section 3160.

In my opinion, several actions may be consolidated in this court and a single judgment rendered for the aggregate amount of the several claims, provided the sum sued for in each action does not exceed $2,000.

As before stated, the most that can be claimed is that a judgment entered after consolidation for more than $2,000 is an irregularity, which may be cured by amendment or may be waived. The defendants have waived, in writing, any irregularity which may occur in the entry of a judgment for plaintiffs for more than $2,000 as a result of the consolidation. As it is not jurisdictional, the waiver may be considered to be valid. The consent, it is true, could not confer jurisdiction if the court was without it in the first instance. But the court did acquire jurisdiction in the first instance, and the power to exercise it according to the prescribed practice is plenary and is not to be considered divested by the mere mode of its exercise. Substance should not be sacrificed to form, especially when the form is by stipulation assented to.

It follows that the court, at special term, had the power to order the consolidation asked for, and the order appealed from is therefore reversed, with ten dollars costs and disbursements. As the court below has not exercised its discretion on the motion, it will be remanded to the special term for such action as the special term justice may deem proper.

McGrOwy and Pttshke, JJ., concur.