
    George B. Wilson, Appellant, v. Charles E. Locke, Respondent. (Actions Nos. 1 and 2.)
    First Department,
    December 21, 1906.
    Practice — consolidation of actions granted — prior action as defense.
    When a plaintiff suing to recover two installments due on a subscription for stock has served his complaint and thereafter serves a second complaint for two more installments which became due after the first complaint was drawn, but before service thereof upon the defendant, a motion to consolidate the two actions should be granted, although the defendant in the second action has answered alleging the pendency of the prior action.
    The court has power to allow an amendinent to the complaint in the first action, by setting up the additional causes of action, and the consolidation of the two pending actions is nothing more than an amendment.
    The defense of an action pending is not a bar to a subsequent action unless judgment is entered thereon prior to the trial of the second action.
    A delay in moving to consolidate such actions is not such loches as to defeat the plaintiff’s right to have the whole question determined in one action.
    Appeal by the plaintiff, George B. Wilson,in both of the above-entitled actions, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of October, 1906, denying the plaintiff’s motion to consolidate the above-entitled actions.
    
      John R. Dos Passos, for the appellant.
    
      Odell D. Tompkins, for the respondent.
   Ingraham, J.:

Plaintiff commenced action No. 1 to recover two installments of an agreement to purchase certain stock of a corporation which had become due at the time the complaint was verified on the 28th of January, 1904. Before the plaintiff was able to serve the defendant the other two installments to be paid for this stock became due and thereupon the plaintiff commenced a second action to recover the remaining installments. The . summons and complaint, was served in the second action on the Jth of October, 1904. After the action was at issue the plaintiff made a motion to consolidate these two actions. The defense in the second action was the same as the defense in the first, except in the second action the defendant set up the pendency of the first action, alleging that it was commenced to recover the first two installments' after the installments in the second action became due.' The court below denied this motion on the ground that the defense in the second action was, different from the defenses in the first action. As the defense in the second action was simply the pendency of the first action, all' the plaintiff would have to do would be to discontinue both actions and commence a new action for all four installments. ■ The defense of a pending action to recover the first two installments would not be available to the defendant unless judgment was entered' in the first action prior to the trial of . the second action. It is the judgment that merges all claims made under a contract up to the time of the commencement of the action that is.a bár to the.second, and •while it is proper to. plead as a defense the pendehcy of .the first action, it is quite apparent that it is the judgment that becomes a bar to the recovery on the second installments and" not the mere pendency of the action to recover for the first installments.

In all óf the cases cited by the defendant' it was a judgment in the first action that was a bar to the maintenance of the second action for the installments due upon the contract when the action was commenced, and not the mere pendency of the action.- Thus, in Lorillard v. Clyde (122 N. Y. 41), it was a judgment.entered in the first action that was held to- be a bar to an action to recover for installments due when the second action was commenced. . So, in Jex v. Jacob (19 Hun, 105), it'was a judgment,that was held to be the bar. And in that case the decision was that the judgment therein should be without prejudice to an application on motion to vacate the judgment recovered and for leave to return to the defendants the money received by way of satisfying it, on such terms as the "court to which it may be made shall deem proper in cáse it shall be_ alio wed to prevail and for the consolidation of the actio ns. Here the motion was made before the action was tried or before it was reached for trial.

The court had ample power and would have been justified in allowing the •plaintiff to amend the complaint in the first action by setting up these two additional causes of action, and it has been held that the court had that power even though judgment had been . entered in the first action and had,been satisfied by the defendant. (Hatch v. Central National Bank, 78 N. Y. 487.) The result of the consolidation of these two actions is nothing more than-an. amendment to the complaint in the first action by including in it a demand for recovery upon the two installments which became due before the summons and complaint were served- A mere delay in making the motion was not such loches as should defeat the plaintiff’s right to have the whole question determined in one action. The cases were at issue when the motion was made; but had not been reached for trial. It is not alleged that the defendant has been deprived of any substantial right in consequence of the delay, and we think the motion should have been granted.

The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted.

Patterson, McLaughlin, Clarke and Houghton, JJ., concurred.

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