
    I. Berlin & Son, Inc., Appellant, v. New York City Omnibus Corporation, Respondent.
    Supreme Court, Appellate Term, First Department,
    May 24, 1939.
    
      Einstein & Einstein, for the appellant.
    
      Henry J. Smith, for the respondent.
   Per Curiam.

As the insufficiency of the defense of another action pending appears upon the face of the answer, the use of the affidavit in aid of same was improper. (Welch v. City of Niagara Falls, 210 App. Div. 170; Reddington v. Elco Merchandising Corp., Inc., 236 App. Div. 64.) That both actions involved the same accident and common questions, may be a ground for consolidation, at least for purposes of trial, but the prior action is not another action pending between the same parties for the same cause. (Tyler v. Standard Wine Co., 52 Misc. 374; affd., 121 App. Div. 928; Tarbell v. Howard, 162 Misc. 606.)

Order reversed, with ten dollars costs, and motion granted.

All concur. Present — Hammer, Shientao and Noonan, JJ.  