
    Frank Borzilleri, Plaintiff, v. Brockway Motor Truck Corporation and Others, Defendants.
    Supreme Court, Monroe County,
    March 17, 1925.
    Pleadings — consolidation of actions — motion to consolidate with plaintiff’s action in Supreme Court defendants’ action in Rochester City Court — all issues may be tried in Supreme Court but not in Rochester City Court — consolidation ordered under Civil Practice Act, §§ 96, 97.
    An action in the Rochester City Court should be consolidated with one in the Supreme Court, under sections 96 and 97 of the Civil Practice Act, where they both arise out of the same transaction and plaintiff’s claim in the Supreme Court action is for an amount which exceeds the jurisdiction of the Rochester City Court, with the result that the plaintiff cannot interpose his counterclaim in the City Court action.
    Motion to consolidate actions.
    
      H. B. Thomas, for the plaintiff.
    
      Harry A. Sessions, for the defendants.
   Rodenbeck, J.:

The action in the City Court of Rochester should be consolidated with that in the Supreme Court. Both grew out of the same transaction, the collision of a motor truck and an automobile. The plaintiff in the Supreme Court action has a claim arising out of the collision in an amount which exceeds the jurisdiction of the City Court so that the plaintiff cannot interpose his counterclaim in that action. He should not be compelled to reduce his claim to the jurisdiction of that court. Two trials growing out of the same facts will be necessary unless the actions are consolidated and to avoid this waste of time the actions should be consolidated. Each party will have the burden of establishing his cause of action. There are also other defendants in the Supreme Court action who are not involved in the City Court action. The defendant gains nothing by a speedy trial in the City Court as it will be obliged to meet the plaintiff’s action in the Supreme Court when reached. All the issues can be tried out in the Supreme Court but not in the City Court and the case is a proper one for consolidation. (Civ. Frac. Act, §§ 96, 97.)

Motion granted.  