
    Mathilda Brunner, Plaintiff, v. Benjamin Steinhardt, Defendant. (Action No. 1.) Benjamin Steinhardt, Plaintiff, v. Mathilda Brunner, Defendant. (Action No. 2.)
    Supreme Court, Special Term, Queens County,
    February 29, 1952.
    
      
      Samuel D. Friedman for plaintiff in Action No. 1 and for defendant in Action No. 2.
    
      Gleason B. Speenburgh and Harry B. Lader for defendant in Action No. 1 and for plaintiff in Action No. 2.
   Peter M. Daly, J.

The parties hereto contracted for the purchase and sale of certain real property located in the County of Delaware, State of New York. Title having failed to close, the purchaser brought an action in this court to recover the deposit of $1,000 and served process upon the seller on September 6,1951. On January 23,1952, the seller instituted an action against the purchaser in the Supreme Court, Delaware County, for the specific performance of the contract for the sale of said property. Although issue in the purchaser’s action was joined on September 26, 1951, it was never placed upon the calendar for trial. Each party now moves to consolidate. The purchaser, however, requests that the consolidated action be tried in Queens County and the seller that it be tried in Delaware County.

The purchaser asserts that the convenience of material witnesses will be served by a trial in this county, whereas the seller insists that under the provisions of section 183 of the Civil Practice Act, he is entitled to have the consolidated action tried in Delaware County, the situs of the real property involved in his specific performance action.

"While a judgment affecting realty, in an action brought in a county other than that designated by statute as the proper county, has been held valid where the defendant did not avail himself of the provisions of the statute to have the cause removed to the proper county (Railroad Fed. Sav. & Loan Assn. v. Rosemont Holding Corp., 248 App. Div. 909), here the seller has brought his action for specific performance in thfe county where the property is situated and resists the attempt of the purchaser to have the consolidated action tried in another county. He has thus invoked the provisions of section 183 of the Civil Practice Act, which requires certain real property actions including one such as this to “be tried in the county in which the subject of the action or some part thereof is situated ” (cf. Manufacturers Trust Co. v. Roerich Museum, 236 App. Div. 76).

Since the issues presented by both actions are the same and an early trial can be obtained in Delaware County, the motion to consolidate is granted, the trial to take place in Delaware County. The purchaser, however, will have the right to open and close since her action was commenced first.

Settle order on notice.  