Casanave v. Robbins

262 A.D. 873

Opinion

Order entered on reargument, as resettled, granting motion to consolidate an action pending and at issue in New York county, with an action pending but not at issue in Westchester county, reversed on the law and the facts, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. The granting of the motion violated section 96 of the Civil Practice Act, in that it prejudiced substantial rights of the plaintiffs in the New York county action, which action was about to be reached for trial. The general rule (Luks v. New York Life Ins. Co., 213 App. Div. 623) that actions will not be consolidated where identity of issue cannot be determined because issue has not been joined should have been given effect. The rule is not inflexible but the circumstances herein did not justify departure therefrom. Lazansky, P. J., Hagarty, Carswell, Johnston and Close, JJ., concur.