Tubin v. Springfield Fire & Marine Insurance Co. of Springfield

222 A.D. 852

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1928
• Status: Published

Opinion

Order modified so as to provide for consolidation of all the actions except that of Tubin v. Springfield Fire & Marine Ins. Co. of Springfield, Mass., and Another (Action No. 2), and further to provide that the successful party in the consolidated action, if the plaintiff, may tax as costs only such costs as he would have been entitled to had the action been originally brought in the consolidated form against all the defendants, and that a successful party, if a defendant, may tax with its costs such costs as have heretofore accrued to it in the unconsolidated actions, and as so modified the order is affirmed without costs- of this appeal to either party, on the ground that the action against the Springfield Fire and Marine Insurance Company involves a question of res adjudicata and proof in respect to this would be prejudicial to the substantial rights of the other insurance companies defendants to have the value of the insured property determined as an original matter, and that the plaintiff asking for consolidation of actions which he could originally have joined in one action should not in the absence of special circumstances be entitled to greater costs than if he had originally brought but one action. All concur. Present — Hubbs, P. J., Clark, Sears, Crouch and Sawyer, JJ.