Majority
p. 352The Gloucester Iron Works, App’lt, v. The Board of Water Commissioners of the Village of Sing Sing, Resp’t. (Supreme Court, General Term, Second Department Filed May 12, 1890.)
Headnote
Actions — Consolidation on.This action was brought for price of iron castings delivered under contract. The answer averred that by the contract plaintiff agreed to indemnify against damages by failure to perform and alleged a failure whereby defendant was sued by other parties for failure to deliver the castings to be used in certain work. In such other action defendant denied a failure to perform on its part. Meld, that there was no basis for a consolidation of the actions.
Appeal from order denying motion for a consolidation of actions, directing an interpleader or striking out the answer as sham, and for other relief.
Action upon contract for furnishing defendant with cast iron water pipe and castings.
The board answered alleging non-performance and an agreement of the plaintiff to indemnify the board against action by reason of non-performance by the plaintiff; and that an action has been brought against the board for $6,000 damages, resulting from such non-performance by plaintiff.
That action was brought by Fogg and Scribner, contractors, with the board, for digging the trenches, and laying the pipe. They allege a claim for $6,000 damages, for neglect of the board to furnish pipe in time, and its refusal to permit them to commence work when they were ready to do so. They also allege an indebtedness of the board to them, of $14,568.41 for work and labor in digging trenches and laying pipe. The board, in its answer in that action, denies that Fogg and Scribner have sustained .any damage by reason of its failure to perform, and alleges full payment for the work and labor performed, except the sum of $91.20.
Moses B. Oroiv, for app'lt; Samuel Watson, for water com’rs, resp’ts ; Smith Lent, for Fogg & Scribner, resp’ts.
There is no basis for this motion. The plaintiff made a contract with the defendant to deliver iron castings at a certain price agreed upon. Upon a failure to pay the price for the property after its delivery, the plaintiff has brought an action. The answer avers that by the terms of the contract the plaintiff agreed to indemnify and save harmless the defendant for a failure to. perform the contract, and avers a failure whereby the de
p. 353
fendant was sued by other parties, which suit is still pending. The pleadings in this action are set forth in the papers. The defendant gave notice to the plaintiff to assume the defense of the ■action, which is referred to a referee by agreement of the parties to that action. At this state of the two controversies, this motion is made with a design to have the two controversies adjusted so that “ the position and standing of the respective parties under the facts as set forth in this (the plaintiff’s) affidavit,” may conform thereto. The facts are disputed, and the two actions must be based upon the real facts as found upon the trial. The motion papers assert that the two actions cannot be properly joined in one action upon the facts.
The motion was properly denied. The ordinary method of trial would be replaced by a trial upon affidavit ex parte.
Order affirmed, with costs and disbursements.
Dykman and Pratt, JJ., concur.