Winter v. Powers

241 A.D. 743

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1934
• Status: Published

Opinion

Order denying motion of the plaintiffs Diamond for a consolidation of these two actions reversed on the law and the facts, with ten dollars costs and disbursements, and the motion granted, without costs. The only time these plaintiffs could have their motion for consolidation ruled upon as a matter of orderly practice was when this motion was made to that end. The ruling of the Trial Term in granting the motion of the plaintiffs Winter in action No. 1 for a preference may not be construed to be a denial of any rights to the plaintiffs Diamond in action No. 2. No motion was pending before that Trial Term that would permit of a consolidation of the two actions. The fact that a consolidation enables the plaintiffs Diamond to get an earlier trial than would otherwise be available to them because the plaintiffs Winter in action No. 1 have had a preference, is no reason for denying a consolidation, especially where the defendants in both actions either consent to or join in the motion for consolidation. Appeal from order denying motion for reargument dismissed. Lazansky, P. J., Hagarty, Carswell, Scudder and Tompkins, JJ., concur.