Timbello Enterprises Inc. v. Agricultural Insurance

19 A.D.2d 581, 240 N.Y.S.2d 514, 1963 N.Y. App. Div. LEXIS 3725

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 1963
• Status: Published

Opinion

Order unanimously modified in accordance with the memorandum and as modified affirmed, with $25 costs and disbursements to appellant. Memorandum: Appellant moved to dismiss the plaintiff’s complaint in an action which was commenced in Onondaga County several months after the institution of a New York County action involving the same issues between the same parties. It requested, however, that in the alternative, if the complaint be not dismissed, the actions should be consolidated and tried together in the Supreme Court of New York County. The respondent, prior to the motion herein, had moved in New York County for a change of venue to Onondaga County and that motion had been denied. No appeal was taken from that denial. Special Term on this motion directed consolidation of the two actions but ordered that they be tried in Onondaga County. The effect of this order was to reverse the order entered in New York County on the venue motion and was in effect an exercise of appellate jurisdiction which Special Term did not possess. We agree with that portion of Special Term’s order consolidating the two actions but reverse the provision that the actions be tried in Onondaga County and direct that the consolidated actions be tried in Supreme Court of New York County, under Index No. 18263/1962. (Appeal from order of Onondaga Special Term denying motion to dismiss complaint.) Present — Williams, P. J., Bastow, Goldman, Halpern and Henry, JJ.