Down Town Realty Co. v. Simpson

227 A.D. 803

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1929
• Status: Published

Opinion

Orders and order on reargument, denying motions of defendants Simpson to consolidate actions, reversed upon the law, with ten dollars costs and disbursements, and motion to consolidate granted, with ten dollars costs. These actions were brought to foreclose four mortgages upon four adjoining lots, executed by the same mortgagor to the same mortgagee upon the same day and upon the same terms, all being purchase-money mortgages, the premises in question having been conveyed in one deed by respondent. The mortgagor sold the four parcels to the same purchaser, taking four second mortgages for part of the purchase price. Whether or not these actions might have been consolidated under the provisions of the Code of Civil Procedure, the Civil Practice Act permits such consolidation. By section 8 of the Civil Practice Act the distinction between actions at law and suits in equity and the forms of those actions and suits have been abolished. By.section 258 the plaintiff may unite in the same complaint two or more causes of action whether they are such as were formerly denominated legal or equitable, or both, where they' are brought upon claims arising out of the same transaction. Section 96 provides that actions may be consolidated whenever it can be done without prejudice to a substantial right. Seeger and Scudder, JJ., concur; Lazansky, P. J., concurs in result; Rich and Hagarty, JJ., dissent.