Byers v. Estate of Tudge

Appellate Division of the Supreme Court of New York

Byers v. Estate of Tudge

117 A.D.2d 912, 499 N.Y.S.2d 19, 1986 N.Y. App. Div. LEXIS 53170

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 20, 1986

StatusPublished

Cited by1 cases

This text of 117 A.D.2d 912 (Byers v. Estate of Tudge) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Byers v. Estate of Tudge, 117 A.D.2d 912, 499 N.Y.S.2d 19, 1986 N.Y. App. Div. LEXIS 53170 (N.Y. Ct. App. 1986).

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Opinion

—Yesawich, Jr., J.

Appeal from an order of the Supreme Court at Special Term (Connor, J.), entered June 7, 1985 in Columbia County, which granted plaintiffs motion to consolidate actions Nos. 1 and 2 for trial.

A horse owned by plaintiff and lodged with defendant Sidney Tudge (hereinafter defendant) allegedly fell into a well on defendant’s property and drowned. Monarch Insurance Company of Ohio paid plaintiff $5,000 for her loss and then, as plaintiff’s subrogor, commenced suit (action No. 2) against defendant in that amount. Thereafter, plaintiff, believing her damages from the horse’s death amounted to $150,000, also instituted suit (action No. 1). Defendant then moved to dismiss action No. 1 on the ground that plaintiff had another action pending between the same parties and charged plaintiff with improperly splitting a single cause of action. Special Term disagreed and granted plaintiffs motion to have the two actions consolidated; defendant appeals.

We affirm. Plaintiff’s interest and that of the insurer, though arising out of the same transaction, are distinct and cognizable (see, Skinner v Klein, 24 AD2d 433). With respect to defendant’s concern that defending against two actions will be unduly cumbersome, that is a circumstance to be resolved by the trial court in the course of the litigation (see, Chemprene, Inc. v X-Tyal Intl. Corp., 55 NY2d 900).

Order affirmed, with costs. Main, J. P., Weiss, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.

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—Yesawich, Jr., J.

Appeal from an order of the Supreme Court at Special Term (Connor, J.), entered June 7, 1985 in Columbia County, which granted plaintiffs motion to consolidate actions Nos. 1 and 2 for trial.

A horse owned by plaintiff and lodged with defendant Sidney Tudge (hereinafter defendant) allegedly fell into a well on defendant’s property and drowned. Monarch Insurance Company of Ohio paid plaintiff $5,000 for her loss and then, as plaintiff’s subrogor, commenced suit (action No. 2) against defendant in that amount. Thereafter, plaintiff, believing her damages from the horse’s death amounted to $150,000, also instituted suit (action No. 1). Defendant then moved to dismiss action No. 1 on the ground that plaintiff had another action pending between the same parties and charged plaintiff with improperly splitting a single cause of action. Special Term disagreed and granted plaintiffs motion to have the two actions consolidated; defendant appeals.

We affirm. Plaintiff’s interest and that of the insurer, though arising out of the same transaction, are distinct and cognizable (see, Skinner v Klein, 24 AD2d 433). With respect to defendant’s concern that defending against two actions will be unduly cumbersome, that is a circumstance to be resolved by the trial court in the course of the litigation (see, Chemprene, Inc. v X-Tyal Intl. Corp., 55 NY2d 900).

Order affirmed, with costs. Main, J. P., Weiss, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.

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117 A.D.2d 912, 499 N.Y.S.2d 19, 1986 N.Y. App. Div. LEXIS 53170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/byers-v-estate-of-tudge-nyappdiv-1986.

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