McKay v. Reed

1 N.Y. City Ct. Rep. 464

Opinion

McAdam, J.

The plaintiff commenced this action against the defendant on November 1, 1882, to recover the amount of three certain promissory notes, made by the defendant, aggregating, in amount, $638.18. The defendant answered, by pleading a counter-claim in defense. The plaintiff thereafter, and on December 13, 1882, commenced an action against the defendant in the sixth judicial district court, on another promissory note made by the defendant, for $101.75. The defense to this note is similar to that interposed to the others. The defendant moves to consolidate the two actions, by bringing into tljis court the action subsequently commenced in the district court. The defendant has brought himself within the rule which entitles a defendant to consolidate actions, and the only question to be considered is one of power. The Code (§ 818) provides : that “ where one of the actions is pending in the supreme court, and another is pending in another court, the supreme court may, by order, remove to itself the action in the other court, and consolidate it with that in the supreme court.” Section 3347 of the Code, in defining the powers of the other courts, provides that section 818 (supra) shall be applicable to all courts of record, so that, so far as the present application is concerned, section 818 is, by construction, to be read as if the word “marine” court had bee.n inserted in that section, instead of the “ supreme.” So construed, it is evident that the necessary power to consolidate exists, by virtue of which this court, by order, removes to itself the action pending in the district court, to the end. that the pleadings in the marine court suit be amended to embrace all the causes of action aforesaid.

The defendant may present the order necessary to carry this decision into effect.