
    Leo E. Dalton, Appellant, v. Gilman Paper Company et al., Respondents. Margaret W. McParland, as Administratrix of the Estate of Peter McParland, Deceased, Respondent, v. Gilman Paper Company et al., Respondents.
   Appeal from an order of the Supreme Court, ordering a joint trial of two actions, directing that the venue of the joint trial be Warren County, and leaving the questions of the right to open and close to determination by the trial court. The two actions grew out of a four-vehicle collision. There were involved a motor vehicle owned and operated by Leo Dalton, a motor vehicle owned by Larman Sherwood and operated by Jessie Sherwood, a tractor-trailer owned by Gilman Paper Company and another tractor-trailer owned by Julius Roethke and operated by Peter McFarland, whose death is alleged to have resulted from the collision. Dalton commenced an action on May 6,1955, in Saratoga County, against the owners of the two tractor-trailers. The administratrix of the estate of Peter McFarland commenced an action on May 13, 1955, in Warren County, against the Gilman Paper Company, Dalton and the Sherwoods. The attorney for Dalton, as a defendant in the second action, moved for a joint trial asking that the venue be fixed by the court as either Saratoga County or Warren County. Dalton, as a plaintiff in the first action, was represented by a different attorney, who did not object to the joint trial but asked that Saratoga County be fixed as the place of trial and also asked the right to open and close, upon the ground that his action had been commenced first. It is questionable whether Dalton has any right to object to the order fixing Warren County as the place of trial in view of the fact that the attorneys representing him as a defendant had moved for a joint trial and had left it to the court to fix either Saratoga or Warren County as the place of trial. In any event, the determination by Special Term fixing Warren County as the place of trial was a proper exercise of its discretion. The fact that Dalton’s action in Saratoga County was commenced first is not necessarily controlling. Leaving the question of the right to open and close for the trial court’s determination was a proper disposition of that question. Order appealed from affirmed, with $10 costs. Poster, P. J., Bergan, Coon and Halpern, JJ., concur; Gibson, J., taking no part.  