
    Eugene J. Busher Co., Inc., Respondent, v. Galbreath-Ruffin Realty Co., Inc., Appellant, et al., Defendant.
   Order entered on March 16, 1962, granting a severance, unanimously reversed on the law, on the facts and in the exercise of discretion, with $20 costs and disbursements to appellant, and the preference denied, with leave to plaintiff to discontinue the third and fourth causes of action and secure a preference if it so desires. The action seeks the recovery of brokerage commissions allegedly earned by procuring the American Airlines, Inc., as a long-term lessee for the defendant-appellant landlord. The first and second causes of action against the landlord claim breach of contract and quantum meruit. The third and fourth causes of action against the tenant and the landlord are tort actions alleging conspiracy to deprive the plaintiff of his commissions and inducement to breach the brokerage contract. Since the complaint alleges causes in contract and tort, the plaintiff was denied a trial preference pursuant to subdivision 1 of rule TV of the Bronx County Supreme Court Trial and Special Term Rules. This rule applies mainly to contract actions, but does not embrace actions which contain causes in contract and tort. To enable plaintiff to gain a preference, Special Term, pursuant to section 96 of the Civil Practice Act, granted a severance of the causes of action in tort. The pleadings indicate that the alleged liability of defendants arose out of a single transaction and the prayer for relief is the same in all causes of action. Under these circumstances, a severance subjects the court and the defendant to separate trials involving a single state of facts. A severance pursuant to section 96 of the Civil Practice Act will not be granted where the convenience of disposing of all issues in one trial clearly outweighs any possible prejudice to the plaintiff. (Kidder Peabody & Co. v. Loewe, 12 A D 2d 917. The plaintiff may discontinue the third and fourth causes of action and then apply for a trial preference if it so desires. Settle order on notice. Concur — Botein, P. J., Stevens, Eager, Steuer and Bergan, JJ.  