
    Alice V. Wooster, Resp’t, v. James N. Case et al. Wm. H. Vibbard et al., App’lts, v. Noah C. Vibbard et al. John N. Ramsdill, App’lt, v. William H. Vibbard et al. John N. Ramsdill, App’lt, v. William H. Vibbard et al.
    
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 28, 1890.)
    
    1. Consolidation of actions.
    Under Code Civ. Pro., §§ 817 and 3839, the court has power in a proper case to consolidate actions whether of the nature formerly known as equitable or as legal.
    2. Same—Pabtitios.
    But the court cannot consolidate two actions of partition where the same were not in favor of the same plaintiff nor against the same,defendant; nor can it by such an order make the plaintiff in the second a defendant in the first action.
    3. Same—Fobeclosube.
    Where the same person held two mortgages upon substantially the same premises, hut the descriptions were not identical in each, the ¿curt refused to consolidate two separate actions of foreclosure, hut intimated that there could he hut one hill of costs.
    Sally Ann Moody, the common source of title, died in April, 1876, seized of the premises in question. Her will gave to her daughter, Matilda Roselle, who died March 30,1890, a life estate. The will "bequeathed the property at the decease of Matilda, “ in case they shall her survive, or to such of them as shall, or their heirs them representing, to wit: My sons, Elisha and James; my daughter, Eliza,, and my grandson, John W. Case, to be divided equally between them, share and share alike.” Elisha died before Matilda, and left no descendants or wife. John W. Case died before her, but left a will, by which he gave Elizabeth Case, his wife, all his property. Eliza P. Yibbard died before Matilda, and left a will, by which she gave all her estate to Alice Y. Wooster, and the only heirs of Eliza are William H. and Noah 0. Yibbard and Alice Y. Wooster. James N. Case still survives. The first above action for partition was commenced by Alice Y. Wooster, April 3,1890. She claimed one-third, and alleged that James N. Case and Elizabeth Case owned the other thirds. She also mado parties the occupants, and Edward R. Waterbury and Harriet E. Buell, who each then held a mortgage on the premises ; and each, or his or her assignee, answered, setting up the mortgages. On June 3, 1890, the second above action of partition was begun by William H, Yibbard. He made all the persons defendants who were defendants in Wooster’s action, and also his brother, Noah 0. Yibbard and wife, and Alice Y. Wooster. He alleged that Alice Y. Wooster did not take one-third under the will, but that Alice Y. Wooster, Noah C. and William H. Yibbard, together, took one-third, as heirs-at-law of their mother, Eliza, irrespective of the will of Eliza. In 1874, Sally Ann Moody had'mortgaged the premises to the executors of one Newman, and in 1875 had given a second mortgage to E. R. Waterbury. Both mortgages have now been assigned to Ramsdill, plaintiff, who begun thereon in June, 1890, the third and fourth of the above actions. The descriptions in these two mortgages vary somewhat from each other. No answers had been put in in any of the actions, except the first, when, on motion of Wooster, the court made an order consolidating the two partition actions, the plaintiff in the second to be regarded as defendant in the first, ordering the actions continued as one action, with Wooster as plaintiff, and also consolidating the two foreclosure actions into one; and further, with leave, after issue joined, to either party to move to consolidate the consolidated actions. Yrilliam H. Yibbard and Ramsdill appeal. Edgar T Brackett, for app’lts; Jesse Stiles, for resp’t.
   Learned, P. J.—

The first and second of these actions are brought for partition; the third and fourth for foreclosure; the third of what may be called the Waterbury mortgage of 1875; the fourth of what may be called the Newman mortgage of 1874.

These two mortgages'seem to include somewhat different pieces of property; inasmuch as the mortgage of 1874 seems to cover a strip of land five feet wide on the east side of the lot not covered by the mortgage of 1875. And the mortgage of 4875 seems to cover a strip of land five feet wide on the west side of the lot not covered by the mortgage of 1874. Whether this is an accidental mistake or not does not appear.

The descriptions in the two partition cases are alike in substance; but as in those suits the land is only described by the adjacent owners we cannot tell whether it coincides with the one or with the other of the mortgage descriptions or with neither. At any rate it includes each.

The first action was commenced April 3, 1890; the second June 3,1890; the third and fourth June 12,1890. The partition actions are brought to partition property which belonged to Sally Ann Moody at her' death September 11, 1876, and which she devised.

Under her will, as is claimed, Eliza P. Vibbard or her heirs, took a fee in remainder in one-third of the property after the life of a life tenant who died March 30,1890. Eliza P. Vibbard died September 5, 1884.

The plaintiff in the first action claims that she by the will of Eliza P. Vibbard inherited the one-third aforesaid. The plaintiff in the second action claims that he and his brother Noah C. and said plaintiff in the first action inherited said third under the terms of the will of Sally Ann Moody, inasmuch as the said Eliza P. Vibbard died .before the said life tenant.

A defendant, James N. Case, claims that as he is the only one of the devisees named by Sally Ann Moody who survived the life tenant, he took the whole of the property.

The Vibbards were not made parties to the first action. Issue had not been joined in the second, third or fourth action when the plaintiff in the first action moved the court to enjoin the prosecution of the second, third and fourth actions. On that motion the court ordered that the first and second actions should be consolidated, and that the plaintiff in the second be regarded as defendant in the first, and the action be continued in the name of the plaintiff, and that the third and fourth be consolidated, with leave after answer served to move for consolidation of the consolidated actions for stay of proceedings.

Vibbard, the plaintiff in the second action, and Bamsdill, the plaintiff in the third and fourth, appeal.

We shall not decide on this appeal what is the proper construction of the will of Sally Ann Moody.

It will be seen that the plaintiff in this motion did not move to consolidate, but to stay proceedings (probably meaning this by the word “ enjoining ”). The court "did not grant such stay, and it was probably held that as answers had not been served in all the actions, the motion for a stay was premature.

We think that the consolidation of .the two partition actions was not authorized by § 817 of the Code of Civil Procedure. The actions were not in favor of the same plaintiff nor against the same defendant. Mayor v. Coffin, 90 N. Y., 312. Nor could the court by such an order make the plaintiff in the second a defendant in the first Code Civil Procedure, § 416 ; 1 Rums/Pr., 234.

Yery possibly Yibbard might have applied to the court under § 452 to direct the plaintiff in the first action to make him a party. And we do not see why this was not the proper course for Yibbard to take, rather than to cause the expense and trouble of a second action.

So, too, if the plaintiff in the first action had offered to make the two Yibbards parties defendant, the court might at the proper time have stayed any further proceedings in the second action. ■Certainly these two partition actions should not be pending when all parties can be brought into one, and due partition made therein. But consolidation was not the proper remedy. We do not say, however, and are not prepared to hold, that in a proper case equitable actions cannot be consolidated. In Mayor v. Coffin, 90 N. Y., 312, the right to consolidate partition actions under proper circumstances was not questioned. There is only one form of action now; §§ 3339 and 817 make no exceptions.

The remarks in Bech v. Ruggles, 6 Abb. N. C., 69, that the language of the Code is the same with that of the Revised Statutes, part 3, chap. 6, title 6, art. 4, § 36, and that that section was never applied to equitable actions, has no force. That section is in a chapter “ of proceedings in personal actions brought for the recovery of any debt, or for damages only.” Of course the provisions of that chapter did not apply to equity actions. The court of chancery, and its jurisdiction, were treated of in chap. 1, title 2, of the same part. But no such distinction now exists between equitable and other actions, and we are not disposed to limit the power of this court, in a proper case, to consolidate any actions, whether they be such as were formerlymalled legal, or such as were formerly called equitable.

There would be no good sense in any such limitation. That there might be different defenses in the two actions is a circumstance which might exist in two actions on promissory notes, and is not a reason against consolidation, or at least, not a fatal reason. Multiplicity of actions was never favored in a court of equity, and it has often sustained actions to prevent that evil.

Whether it would be wise in any particular case to consolidate foreclosure actions is another question.

In regard to the two foreclosure actions it appears, as above stated, that they do not cover precisely the same piece of land. Why this is, whether there is an error in the description or what is the cause, we do not know.

If the two actions affected the same piece of land we see nó reason why the court should not stay the proceeding on the second incumbrance. The rights of the second incumbrancer would be secured by his lien on the surplus money after the sale, and certainly two foreclosures should not, unless in an unusual case, be permitted to proceed at the same time on the same property.

But under the circumstances we think it would not be proper that there should be a consolidation of the foreclosure actions.

Of course as costs are in the discretion of the court in such actions it will be in the power of the court to deny costs in one or even both of the actions, should the court be of the opinion that the actions had been unreasonably commenced. It would seem from the papers that, when the first action was commenced, both of the mortgages were held by personsmade defendants to the said action; and that such defendants set up said mortgages in their respective answers and claimed to be owners thereof. And that the said defendants were owners severally of these mortgages when the second action was commenced, and that afterwards they severally assigned the same to said plaintiff, Bamsdill.

The same attorneys appeared for the plaintiff in the second, third and fourth actions, so that Bamsdill is chargeable with knowledge of the second action.

If the plaintiff in the first action had made, or if she should make, the two Yibbards defendants, we see no reason why-the proceedings in the second, third and fourth actions should not all be stayed until the decision of the first.

The two mortgages are prior to the rights of the heirs, and would have to be paid from the avails whether they cover the same property or not.

But it does not seem to us wise on this appeal to attempt to adjust the matter. We leave the plaintiff to such future action as may be advised. ,

The order appealed from is reversed, without costs, and with leave to plaintiff in the first action to renew her motion as she may be advised.

Laxdoh and Mayham, JJ., concur.  