Sire v. Kneuper

Headnote

Removal and consolidation of action pending in district court.

Section. 818 of the Code, extended by section 3347, to all courts of record, and tlie court of common pleas, by section 3348 of the Code, being one of the “ superior courts of cities,” its jurisdiction by section 267 is co-extensive with, that of the supreme court.

Motion to remove and consolidate action pending in one of the district courts in the city of New York, into an action pending in the court of common pleas for the city and county of New York, under sections 817 and 818 of the Code of Civil Procedure.

Defendant’s affidavit stated that plaintiff brought action in district court to recover $116.66 for rent, for the month of October, 1888. Defendant after joining issue, gave the bond required by the statute, and removed the case into the common pleas. Plaintiff then brought another action in the same court against the same defendant, to recover $91.66-100 rent for month of Hovember, 1888.

made and argued the following points:

First Point.—This court has power to grant the motion, the two actions being in favor of the same plaintiff against the same defendant, for causes of action which may be joined, as provided by sections 817 and 818 of the Code of Civil Procedure.

Section 817.—“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.”

Section 818.—“ Where one of the actions is pending in the supreme court, and another is pending in another court, the supreme court may, by order, remove to itself, the action in the other court, and consolidate it with that in the supreme court.”

These two sections of the Code apply to all courts of record. Code, section 3347, subdivision 6. This latter section, in defining the power of the other courts, provides that sections 817 and 818, “ apply to all courts of record,” and as this

court is a court of record (Code section 2), section 818 is, by construction, to be read as if the words “the court of common pleas for the city and county of New York,” had been inserted in that section, instead of the words “ supreme court.”

Similar motions were made in the supreme and in the _ city (late marine) court of New York, and both were granted. Soloman v. Belden, 12 Abb. N. C., 58 ; McKay v. Reed, City Court R., vol. 1, p. 464, and also reported in 12 Abb. N. C., 58 , note.

Thus we see that this court has power to make the order asked for, but in addition we show that by section 3343 of the Code, subdivision 1, this court is made one of the “superior city courts,” and by section 267 of the Code, the jurisdiction of a “superior city court is made co-extensive with that of the supreme court.”

Second point.—The oral pleadings in the two actions, as shown by the affidavit of the' defendant on this motion, sufficiently set forth the facts necessary to bring this motion within the two sections of the Code under which it is made.

I. The rents claimed in both actions accrued and are due under a lease made by the defendant. See defendant’s affidavit. They are actions that may be joined in one or the same complaint, under section 484 of the Code. They are both between the same parties, plaintiff and defendant, and upon contracts, both being for rent alleged to be due, and both are at issue; the defenses are the same in both actions. Courts do not favor multiplicity of actions, and hence the legislature wisely passed sections 817 and 818, and the granting of this motion will not only result in a saving of time and expense to the parties, “but it will relieve courts and juries from the useless burden of twice investigating the same matter,” as was well said by Chief Justice Bronson in Wilkinson v Johnson ( 4 Hill, 46 ).

II. Defendant’s affidavit shows that he is harassed and annoyed by the second action. The consolidation will prevent this.

Chief Justice Savage says that the object of the provision of law for consolidation of actions is “to prevent oppression by the unnecessary accumulation of costs.” Brewster v. Stewart, 3 Wend., 441 .

As the lease under which the rent is claimed does not expire until May next, it is evident from what has already occurred that every month’s rent; as it falls due, will be sued for in a separate action. This is just what the courts will prevent by a consolidation, in order that the defendant will no longer be harassed and annoyed, and in order that courts and juries (as already stated) will be relieved from

the useless burden of twice and thrice investigating the same matter.

III. Not only are two separate suits broughtupon claims, which might be joined in one suit, but a new attorney appears in the second action. This is but a blind and subterfuge, in order to make double costs and in order to vex, harrass and annoy the defendant. Both attorneys are not only in the same building, but are in the same office.

See affidavit of Julius Langbein, which could not be made before, as all the facts therein stated were not known when the present order to show cause was obtained. But the oourt has nothing to do with attorneys on this motion, but only with the parties.

Why was the second attorney a different attorney, when the issues are precisely alike ? Your honor can see through this as well as we can.

IV. The mere fact that the months for which the rents are claimed are different, and that the second action could not be brought when the' first one was, makes no difference whatsoever on this motion, because consolidation will be made, not only where both suits are brought at the same time, but where they are brought at different times; and it will not be a sufficient objection that the second cause of action had not accrued at the time the first suit was commenced. Dunning v. Bank of Auburn, 19 Wend., 23 ; Brewster v. Stewart, 3 id., 441; Oldershaw v. Tregwell, 3 Carr. & P., 58.