
    Julius Lebowitz, Respondent, v. Leach Steel Corporation, Appellant.
   Order modified so as to provide that Leach Steel Corporation shall be the plaintiff in the consolidated action, and as so modified affirmed, without costs of this appeal to either party. The order here affirmed called for the exercise of discretion and we are affirming on that basis. (See Civ. Prac. Act, § 97.) This affirmance is not to be taken as approving in all respects the language of the opinion in Borzilleri v. Brockway Motor Truck Co. (124 Mise. 905). All concur, except Sears, P. J., and Crouch, J., who dissent and vote for reversal in a memorandum. Present — Sears, P. J., Crouch, Taylor, Edgcomb and Crosby, JJ.

Sears, P. J., and Crouch, J.

(dissenting). We find here no cogent reasons for consolidating these actions into one in the Supreme Court and thereby denying the appellant corporation the right to a speedy trial of the controversy between the parties in the tribunal selected by it. The action brought by the appellant corporation in the City Court was the earlier. The respondent’s case may be alleged in full in the City Court action by way of defense and counterclaim, even if judgment may not be awarded there for the full amount of damages which the respondent has alleged in his complaint in the Supreme Court action. (Rochester City Court Act [Laws of 1918, chap. 495], § 497, as amd. by Laws of 1922, chap. 483.) 
      
       See Rochester City Charter (Laws of 1907, chap. 755), § 497, added by Laws of 1918, chap. 495, as amd. by Laws of 1922, chap. 483.— [Rep.
     