Samworth v. Frankenhoff

272 A.D.2d 831

Opinion

The two orders herein, entered on reargument, striking out the counterclaim and granting summary judgment to respondents, and denying appellants’ cross motion to consolidate the foreclosure action with the fraud action, are reversed on the law, with $10 costs and disbursements, the motion to strike out and for summary judgment denied, and the motion to consolidate granted, with $10 costs. In both the fraud action, and in the counterclaim in the foreclosure action, the purchasers affirmed the contract of sale and sought damages for alleged fraudulent representations. The consolidation of the actions will not prejudice a substantial right, and will permit settlement of the whole- controversy in one action. (Sail V. Grays, 227 App. Div. 337; Sherwood v. Finche Co., Inc., 196 App. Div. 97; County Plains Corp. v. Nosband Gorp., 234 App. Div. 588, 591; Nussbaum v. Sobel, 269 App. Div. 105.) Carswell, Acting P. J., Johnston, Adel, Nolan and Sneed, JJ., concur.