Pollak v. Long Island Lighting Co.

246 A.D. 765

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1935
• Status: Published

Opinion

Order staying plaintiff from proceeding in this stockholder’s action reversed on the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, on condition that plaintiff, within ten days after the entry of the order herein, file a stipulation consenting without conditions to the entry by defendants of an order consolidating this action with the present consolidated action pending in the Supreme Court, New York county, subject and without prejudice to the proceedings already had therein, and that the procedure on the trial be regulated by the trial justice; otherwise, the order is affirmed., with ten dollars costs and disbursements. The prosecution of a class or representative action subsequently brought will be enjoined as a matter of right only upon the entry of judgment in the first action. (Travis v. Myers, 67 N. Y. 542; Hirshfeld v. Fitzgerald, 157 id. 166; American Grocery Co. v. Flint, 5 App. Div. 263; Mattison v. Demarest, 24 N. Y. Super. Ct. [1 Robt.] 717; Innes v. Lansing, 7 Paige, 583; Dresdner v. Goldman Sachs Trading Corp., 240 App. Div. 242.) Independently of statute, the court, in the exercise of discretion, may consolidate actions or stay one or more actions pending the determination of other actions. (Pfohl v. Simpson, 74 N. Y. 137; Dresdner v. Goldman Sachs Trading Corp., supra.) Under the circumstances here presented we believe it was an improper exercise of discretion to grant a stay and that consolidation is the more appropriate remedy, particularly as it may be had without prejudice to the rights of any party. (Dresdner v. Goldman Sachs Trading Corp., supra; Pfohl v. Simpson, supra; American Grocery Co. v. Flint, supra.) Lazansky, P. J., Carswell, Tompkins, Davis and. Johnston, JJ., concur.