Heimov v. 15 Pleasantville Road Corp.

Appellate Division of the Supreme Court of New York

Heimov v. 15 Pleasantville Road Corp.

1 A.D.2d 967, 150 N.Y.S.2d 377, 1956 N.Y. App. Div. LEXIS 5764

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

DecidedApril 16, 1956

StatusPublished

Cited by1 cases

This text of 1 A.D.2d 967 (Heimov v. 15 Pleasantville Road Corp.) 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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Heimov v. 15 Pleasantville Road Corp., 1 A.D.2d 967, 150 N.Y.S.2d 377, 1956 N.Y. App. Div. LEXIS 5764 (N.Y. Ct. App. 1956).

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Opinion

The owner of a building, 15 Pleasantville Road Corporation, in the construction of which the other parties participated, appeals from that part of an order which denies its motion (1) to remove to the Supreme Court, Westchester County, Action No. 2, which was brought by the supervising engineer in the Supreme Court, Queens County, for the balance due him under his contract, and (2) to consolidate it with the other actions consolidated by [968]*968said order into Action No. 1, brought by a subcontractor to foreclose a mechanic’s lien. Order modified to provide that Action No. 2 be also consolidated into Action No. 1 for trial by the court without a jury at Special Term, Westchester County. As so modified, order affirmed, with $10 costs and disbursements to appellant. The principal issues in these actions, arising out of the building of the same structure, relate to the allocation of responsibility between the respondents for allegedly improper construction. Therefore, the actions may be consolidated, if to do so will not prejudice a substantial right (Civ. Prac. Act, § 96; Bialostok v. Wolfer, 191 Misc. 385, 388). Respondent in Action No. 2 waived his right to a trial by jury (Civ. Prac. Act, § 426, subd. 5), and appellant consented to waive a jury therein, which it had demanded and for which it had paid the fee pursuant to said statute. Since an early nonjury trial is readily available in Westchester County, the trial of Action No. 2 will not be delayed by consolidation. Nor have respondents met their burden of showing that consolidation will prejudice any other substantial right of theirs. (Tasoio v. Citizens Bank of White Plains, 254 App. Div. 881; Crandall v. Leach & Co., 222 App. Div. 292 ; 2 Carmody-Wait Cyclopedia of New York Practice 478.) On the other hand, if separate trials were to be had, each respondent herein might separately prevail on a claim that the fault was that of the other. Such a contradictory result would be to appellant’s prejudice. Under these circumstances, it was an improvident exercise of discretion to deny the consolidation in question. Nolan, P. J., Wenzel, Murphy, Ughetta and Hallinan, JJ., concur.

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The owner of a building, 15 Pleasantville Road Corporation, in the construction of which the other parties participated, appeals from that part of an order which denies its motion (1) to remove to the Supreme Court, Westchester County, Action No. 2, which was brought by the supervising engineer in the Supreme Court, Queens County, for the balance due him under his contract, and (2) to consolidate it with the other actions consolidated by [968]*968said order into Action No. 1, brought by a subcontractor to foreclose a mechanic’s lien. Order modified to provide that Action No. 2 be also consolidated into Action No. 1 for trial by the court without a jury at Special Term, Westchester County. As so modified, order affirmed, with $10 costs and disbursements to appellant. The principal issues in these actions, arising out of the building of the same structure, relate to the allocation of responsibility between the respondents for allegedly improper construction. Therefore, the actions may be consolidated, if to do so will not prejudice a substantial right (Civ. Prac. Act, § 96; Bialostok v. Wolfer, 191 Misc. 385, 388). Respondent in Action No. 2 waived his right to a trial by jury (Civ. Prac. Act, § 426, subd. 5), and appellant consented to waive a jury therein, which it had demanded and for which it had paid the fee pursuant to said statute. Since an early nonjury trial is readily available in Westchester County, the trial of Action No. 2 will not be delayed by consolidation. Nor have respondents met their burden of showing that consolidation will prejudice any other substantial right of theirs. (Tasoio v. Citizens Bank of White Plains, 254 App. Div. 881; Crandall v. Leach & Co., 222 App. Div. 292 ; 2 Carmody-Wait Cyclopedia of New York Practice 478.) On the other hand, if separate trials were to be had, each respondent herein might separately prevail on a claim that the fault was that of the other. Such a contradictory result would be to appellant’s prejudice. Under these circumstances, it was an improvident exercise of discretion to deny the consolidation in question. Nolan, P. J., Wenzel, Murphy, Ughetta and Hallinan, JJ., concur.

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1 A.D.2d 967, 150 N.Y.S.2d 377, 1956 N.Y. App. Div. LEXIS 5764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heimov-v-15-pleasantville-road-corp-nyappdiv-1956.

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