Funk v. Nelson

264 A.D. 876, 35 N.Y.S.2d 503, 1942 N.Y. App. Div. LEXIS 5210

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1942
• Status: Published

Opinion

Order granting reargument, and on reargument adhering to the original determination, modified on the law and the facts by striking from the second ordering paragraph the words “ the original determination is adhered to ” and inserting in place thereof the following: “ it is ORDERED that the said motion to consolidate the above entitled actions be and the same hereby is granted to the extent that the actions are consolidated, plaintiffs Funk and Harris to have the right to open and close and trial to be held in Kings County.” As so modified, the order on reargument is affirmed, with ten dollars costs and disbursements to appellants. Respondent having failed to present any proof that the convenience of witnesses would be served by removal of the consolidated causes to Chenango county for trial, the action should be tried in Bangs county, in which county the action was brought by appellants prior to the time of the commencement of respondent’s action. (Lee v. Schmeltzer, 229 App. Div. 206.) The appeal from the original order, as to which reargument was granted, is dismissed, without costs, as no appeal lies therefrom. Lazansky, P. J., Carswell, Johnston, Taylor and Close, JJ., concur.