
    The People of the State of New York ex rel. James G. Collins, Respondent, v. John F. Ahearn, as President of the Borough of Manhattan, City of New York, Defendant, Impleaded with George F. Scannell, Appellant. The People of the State of New York ex rel. James G. Collins, Respondent, v. George McAneny, as President of the Borough of Manhattan, City of New York, Appellant.
    First Department,
    July 7, 1911.
    Mandamus — party — substituting present incumbent of office — practice .— consolidation of special proceedings.
    It is proper in a mandamus proceeding brought against one ofthe borough presidents of New York city to compel the reinstatement of the relator in the city’s employ, -to substitute the present borough president as defendant in place of the president who held office when the proceeding was instituted. ' .
    
      The statutory authority to consolidate actions was given primarily for the benefit of the defendant.
    The Supreme Court-has no authority to consolidate two special proceedings-which are based on different facts and are, in part, against different respondents.
    So it is improper to consolidate two mandamus proceedings brought against the president of the borough of Manhattan to compel the reinstatement of the relator in the employ of the city where the first proceeding was against a former president of the borough and was based on facts then existing and the second proceeding was based on the theory that the relator lawfully held office when the present borough president assumed office and that he unlawfully removed relator.
    Sepabate appeals by the defendants Greorge F. Scannell and George McAneny, as president, etc., from an order óf 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 8th day of April, 1911, substituting George McAneny, as president of the borough of Manhattan, in the "place and stead of and as successor to former borough presidents John F. Aheam and JohnCJIoughen in the first above-entitled proceeding and continuing said proceeding against said McAneny, as president of the borough of Manhattan and consolidating said proceeding with the proceeding secondly entitled.
    
      Terence Farley [Louis H. Hahlo with him on the brief], for the appellant McAneny, as borough president.
    
      George Gordon Battle [Roger B. Wood with him on the brief], for the appellant Scannell.
    
      Herbert C. Smyth [John W. Browne and Frederic C. Sco field with him on the brief], for the respondent.
   Laughlin, J.:

The first proceeding is against Ahearn, as president of the borough of Manhattan, for the reinstatement of the relator to the position of head of the bureau of highways, and the appellant Scannell, who was appointed in his place, was joined as a respondent. Pending the proceeding Ahearn was removed from office and the proceeding abated. (People ex rel. Collins v. Ahearn, No. 1, 137 App. Div. 260, 265.) On the 21st day of December, 1909, the relator obtained an order continuing the proceeding against one Cloughen, Ahearn’s successor in office, and thereafter obtained a peremptory writ of mandamus based on proceedings had after the removal of Ahearn and before the proceeding was continued against his successor, for the restoration of the relator and for the payment of his salary. The appellant McAneny succeeded Cloughen as borough president on January 1, 1910, and as such official made a return to said peremptory writ of mandamus which had been served on him, although he had not been substituted as a party to the procéeding. On the 9th day of December, 1910, the relator instituted the second proceeding, which is against McAneny, as borough president, for his reinstatement as superintendent' or head of the bureau of highways, based, however, not upon his removal by Ahearn, but upon the theory that he lawfully held the office at the time McAneny became borough president, and that it was the latter’s duty to obey said peremptory writ of mandamus; that he was unlawfully removed and ejected from his office by McAneny on the 22d day of April, 1910, without charges, or an opportunity to explain any charges against him, and also that on or about the 14th day of February, 1910, McAneny, as borough president, assumed without authority and in bad faith to abolish the office held by the relator. On the appeal in the proceeding instituted against Ahearn this court held that the proceedings therein subsequent to the removal of Ahearn were a nullity (People ex rel. Collins v. Ahearn, supra); and thereafter and on the 13th day of March, 1911, an order was duly made by the Special Term vacating and setting aside the final order in said proceeding which had been made subsequent to the removal of Ahearn.

We are of opinion that the court properly granted the order substituting McAneny, as borough president, in the proceeding originally instituted against Ahearn, as borough president, and directing that the proceeding be continued against McAneny in his capacity as such borough president. (People ex rel. La Chicotte v. Best, 187 N. Y. 1.) We think, however, that the consolidation of the two proceedings was not authorized. There appears to be no express statutory authority for consolidating special proceedings. It is difficult to conceive a case in which it would be practical to consolidate special proceedings.. It is manifest that there would be no necessity for consolidating two proceedings instituted by the same party against the same party or parties on the same'facts and for identically the same relief. In such case one of the proceedings would be entirely unnecessary and might be discontinued; and if two or more proceedings are instituted by and against the same parties on different facts and for different relief, there would seem to be no propriety in consolidating them. The theory of the provisions of section 817 of the Code of Civil Procedure with respect to the consolidation of actions is not that it is deemed necessary to make provision for the consolidation of two or more actions based on the same cause of action, but for two or more actions by the same plaintiff against the same defendant or defendants on different causes of action. (Miller v. Baillard, 124 App. Div. 555; Mayor v. Coffin, 90 N. Y. 312, 313.) The statutory author- . ity to consolidate actions was given primarily for the benefit' of the defendant and not for the benefit of' the plaintiff, who might have originally joined his causes of action in one. Without expressing, a decided opinion with respect to whether or not the court may have implied authority to consolidate special proceedings, or as to whether or not a state of facts or circumstances- may arise which would warrant that course, we are decidedly of opinion that there was no authority for the consolidation of those proceedings, which are based on different facts and are' against different respondents in part at least.

It follows that the order should be modified by striking out the provision thereof granting the motion for the consolidation of the proceedings ánd inserting in lieu thereof a provision denying such motion, and as thus modified affirmed, with costs, for, although the appeal was from the entire order, this was the only point presented for decision.

Ingbaham, P. J., Clarke, Scott and Milleb, JJ., concurred.

Order modified as directed in opinion and as modified affirmed, with costs. Order to be settled on notice.  