
    The German Exchange Bank, Plaintiff, v. John Kroder, Impleaded, Defendant.
    (New York Common Heas
    Special Term,
    October, 1895.)
    Where a different state oí facts has arisen, a new motion, based on such facts, may be made without leave of court.
    On motion for consolidation of actions plaintiff made a counter motion for judgment on the answer as frivolous, which was granted, and the motion for consolidation denied. Subsequently the order allowing j udgment was reversed and amended answer served on payment of costs. Held, that there was a change of facts which authorized a renewal without leave of the motion for consolidation.
    Motion for consolidation.
    The opinion states the material facts.
    
      Henry Schmitt, for defendant and motion. .
    
      John, Fennel, for plaintiff, opposed.
   Giegebich, J.

The motion is made by the defendant to ■consolidate two actions brought against him by the plaintiff. A similar motion was made at an earlier stage of the proceedings in these actions, at which time the plaintiff made a counter motion for judgment upon the answers as frivolous. Both motions were considered, at the same time and disposed of in the same decision, the one for judgment being granted, while the one for consolidation was denied.- Upon appeal, the order allowing judgment was reversed, but the one refusing consolidation was not appealed from and still stands, and, so the plaintiff contends, is a bar to this motion. It has been said that the decision of a motion is never regarded as res adjudieata (Snyder v. White, 6 How. Pr. 321; Smith v. Spalding, 30 id. 339; Belmont v. Erie R. R. Co., 52 Barb. 637); at any rate not strictly - as such. Veeder v. Baker, 83 N. Y. 156; Riggs v. Pursell, 74 id. 370; First Nat. Bank v. Clark, 42 Hun, 90; Thalheimer v. Hays, Id. 93. As a matter of orderly practice, however, . leave to renew a motion should be obtained from the court (Snyder v. White, supra; Smith v. Spalding, supra); but where a different state of facts has arisen since the first motion,-a new motion, based upon these facts, may be made as a matter of right. Veeder v. Belmont, supra; Belmont v. Erie R. R. Co., supra; People ex rel. Barry v. Mercein, 3 Hill, 399; Erie R. R, Co. v. Ramsey, 57 Barb. 449; Smith v. Zalinski, 94 N. Y. 519; Goddard v. Stiles, 99 id. 640; Noonan v. N. Y., ete., R. R. Co., 68 Hun, 387. That the facts have changed is clear. Amended answers have been served upon payment of considerable costs to the plaintiff. The order allowing judgment has been reversed. In making that order in the first instance, the ■ court naturally refused consolidation because the order for judgment terminated the actions and left nothing for an order for consolidation to operate upon. Under the circumstances it cannot be said with certainty that the former denial was based upon a consideration of the merits of the application considered .apart from the counter application. The fact that the consolidation was granted as to the other defendants, whose answers were nearly as faulty as those of this defendant, may properly be regarded as an indication that, had the answer in its present amended form been at that time before the court, the motion would have been granted. For these reasons the motion is granted, but under the circumstances no'- motion costs are awarded. The order to be entered hereon should also provide for payment to plaintiff, if ultimately successful, of the costs to date of the discontinued action. See Hiscox v. New Yorker Staats Zeitung, 3 Misc. Rep. 110; 52 N. Y. St. Repr. 212; 23 N. Y. Supp. 682; 23 Civ. Proc. Rep. 87; 30 Abb. ' N. 0. 131.

Motion granted, without costs.  