Hessen v. Hessen

37 A.D.2d 778, 325 N.Y.S.2d 255, 1971 N.Y. App. Div. LEXIS 3405

Opinion

In an action for divorce op, in the alternative, for separation, (1) defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County, dated April 20, 1971, as denied her motion to dismiss the complaint and (2) plaintiff appeals from so much of said order as denied his cross motion to consolidate a support proceeding pending in the Family Court, New York County, with this action and accordingly to remove the proceeding to the Supreme Court, Nassau County. Order modified by deleting therefrom so much thereof as denied plaintiff’s cross motion and by providing, in lieu thereof, that said cross motion is granted. As so modified, order affirmed insofar as appealed from, without costs. In our opinion, under the particular circumstances herein, it was an improvident exercise of discretion to deny the cross motion for consolidation. The issues being the same in the action and the proceeding, consolidation should have been granted. Rabin, P. J., Hopkins, Munder, Latham and Shapiro, JJ., concur.