Lorch v. Lorch

Appellate Division of the Supreme Court of New York

Lorch v. Lorch

7 A.D.2d 641, 179 N.Y.S.2d 638, 1958 N.Y. App. Div. LEXIS 4284

Appellate Division of the Supreme Court of the State of New York·Decided November 10, 1958·Published·Cited by 2 cases

Opinion

Appeal from an order denying appellant’s motion (1) to transfer from the Municipal Court of the City of New York a summary proceeding, brought by respondent to recover possession of real property from appellant, and (2) to consolidate said proceeding with this action, brought by respondent for a separation from appellant. Order reversed, without costs, and motion granted. Since appellant cannot obtain affirmative equitable relief in the summary proceeding (Levy v. Van Dorn Hotel Corp., 60 N. Y. S. 2d 795), and since there are questions of law and fact common to the proceeding and the action which may be disposed of in one lawsuit without prejudice to a substantial right of either party (cf. Corcoran v. Scolaro, 267 App. Div. 871), a consolidation should be had to avoid multiplicity of suits (Datz v. Economy Cotton Goods Stores, 263 N. Y. 252, 254; Scherman v. Scherman, 261 App. Div. 908). Settle order on notice.Wenzel, Acting P. J., Beldoek,' Ughetta, Hallinan and Kleinfeld, JJ., concur.

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Appeal from an order denying appellant’s motion (1) to transfer from the Municipal Court of the City of New York a summary proceeding, brought by respondent to recover possession of real property from appellant, and (2) to consolidate said proceeding with this action, brought by respondent for a separation from appellant. Order reversed, without costs, and motion granted. Since appellant cannot obtain affirmative equitable relief in the summary proceeding (Levy v. Van Dorn Hotel Corp., 60 N. Y. S. 2d 795), and since there are questions of law and fact common to the proceeding and the action which may be disposed of in one lawsuit without prejudice to a substantial right of either party (cf. Corcoran v. Scolaro, 267 App. Div. 871), a consolidation should be had to avoid multiplicity of suits (Datz v. Economy Cotton Goods Stores, 263 N. Y. 252, 254; Scherman v. Scherman, 261 App. Div. 908). Settle order on notice.Wenzel, Acting P. J., Beldoek,' Ughetta, Hallinan and Kleinfeld, JJ., concur.

Lorch v. Lorch, 7 A.D.2d 641, 179 N.Y.S.2d 638, 1958 N.Y. App. Div. LEXIS 4284 (N.Y. Ct. App. 1958).

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