
    William Lewis Boyle, App’lt, v. Staten Island and South Beach Land Company, Limited, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 17, 1895.)
    
    1. Tbial — Consolidation or actions.
    Under section 817 of the Code, it is error before answer to consolidate two actions against a corporation, one on coupon notes issued by it, and the other for money alleged to have been paid out for its use.
    2. Same.
    In such case, the motion to consolidate will be denied'with leave to renew after issue joined.
    Appeal from an order of consolidation.
    
      Willard Parker Butler, for app’lt; Robert L. Harrison, for resp’t.
   O’Brien, J.

The first action is brought to recover the amount of interest coupons on certain negotiable promissory coupon notes issued by the defendant corporation and payable to the bearer. The second action is brought to recover for moneys alleged to have been paid out to the use of the defendant Before answering, and upon an affidavit of one of the directors and principal owners of the stock of the defendant, averring that the plaintiff is not the owner of the interest coupons sued upon in the first action, and that the defendant is not indebted to the plaintiff in any sum in the second action, but that, on the contrary, the plaintiff is indebted to the defendant in a large amount, as will appear upon an accounting (the claim being that the plaintiff was the agent of the defendant, and manager of the real estate constituting the property of the defendant, the object of which was to manage, develop, and sell real estate), a motion for the consolidation of both actions into one was made.

Section 817 of the Code of Civil Procedure provides that, “ where two or more actions in favor of the same plaintiff and against the same defendant, for causes of action which may be joined, are pending in the same court, the court may in its discretion by order consolidate any or all of them into one action.” No-doubt, both of these actions, being upon contract, could be joined in one complaint; but this is not necessarily controlling upon the question whether they should or should not be consolidated. If the issues or the questions arising were different, or if, for any other good and sufficient reason, it was not proper for the court to-exercise its discretion in favor of granting the motion, it should have been denied. Whether the issues and questions will be-identical cannot be determined definitely until the answers are interposed. For this reason, we think it the better practice to wait, before making a motion to consolidate until after the interposition of answers, because it is only then that the issues are definitely determined, and thus the court is in'a better position to determine upon the identity of issues or questions involved in two or more actions sought to be consolidated. Here the first action, being to recover upon coupons, is affected by section 1778 of the Code ; and therefore, in pursuance to such section, “ unless the defendant serves with a copy of his (its) answer or demurrer a copy of an order of the judge directing that the issues presented by the pleadings be tried, the plaintiff can take judgment as in case of default in pleading.” By the order of consolidation, no effect is given to this section, because, without answering, the defendant has obtained an order directing that the issues be tried in connection with another suit brought against it by the plaintiff upon a different cause of action, and without its being made clearly and definitely to appear that the questions or issues to be tried are the same. Even assuming that the defense outlined in the affidavit, that the plaintiff is not the owner of the coupons, be interposed, the action upon the coupons is one that can be tried upon the short-cause calendar before a jury ; whereas in the other action, if an accounting is to be entered upon to determine whether the plaintiff is indebted to the defendant or the defendant to the plaintiff, it may involve the examination of a long account, and be referable. Unless, therefore, it appeared that the accounting which the defendant intended by its answer to demand of the plaintiff as its agent was in some way connected with the obtaining and possession of the coupons in his like capacity as agent,, the similarity between the questions involved is wanting.

We think, upon the showing made, the motion should have been denied, and that the order appealed from should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs, but with leave to renew after issue joined.

Follett, J., concurs.

Yan Brunt, P. J.

I dissent from so much of this opinion as proposes to grant leave to renew.  