
    Rose W. Goldsleger, Respondent, v. Joseph Weiss, Appellant.
    First Department,
    September 24, 1959.
    
      
      Samuel B. Hurwits (Irving A. Silverman with him on- the brief; Melton & Hurwits, attorneys), for appellant.
    
      Samuel B. Weingrad for respondent.
   Per Curiam.

These are two appeals by defendant from orders entered. The first is from an order of Special Term entered April 3, 1959 which denied defendant’s motion for leave to amend his answer, and the second is from so much of an order of Special Term entered May 27, 1959, which denied defendant’s motion to consolidate two actions or, in the alternative, to direct a joint trial. For convenience the two motions are discussed together.

This was an action for damages for an alleged breach of contract to purchase a drugstore. The summons and complaint were served on or about April 2, 1958, and issue joined by the service of an answer on or about April 19, 1958.

Shortly thereafter, about June 19, 1958, this defendant instituted a separate action to recover a deposit of $5,000, alleging fraud in the inducement to contract. Issue was not joined in this action until May 6, 1959.

Special Term, in denying the motion to amend, pointed out that the defendant ‘ ‘ had ample opportunity to plead the proposed counterclaim when he served his answer ”. We find no abuse of discretion and accordingly the order should be affirmed, with costs to respondent.

In the view we take of the appeal from the second order, it seems advisable to permit a joint trial in the interests of economy of time and effort both for the parties and for the court since somewhat the same subject matter is involved. Under the circumstances present a jury trial can cause no prejudice to either party.

Accordingly, the second order appealed from should be reversed in the exercise of discretion and the motion for a joint trial granted, without costs upon condition that the joint trial proceed immediately if the plaintiff Goldsleger so elects.

Rabin, J. P., M. M. Frank, Valente, McNally and Stevens, JJ., concur.

Order of April 3, 1959 unanimously affirmed, with $20 costs and disbursements to the respondent.

Order of May 27, 1959 so far as appealed from unanimously reversed in the exercise of discretion and the motion for a joint trial is granted, without costs, upon condition that the joint trial proceed immediately if the plaintiff Goldsleger so elects.  