
    SOLOMAN v. BELDEN.
    N. Y. Supreme Court; First District, Special Term,
    
    
      December, 1882.
    Consolidation of Actions Pending in Different Courts.
    
    Under sections 817 and 818 of the Code of Civil Procedure, where an action is pending in the supreme court, and another action between the same parties is pending in another court, and the causes of action might be joined in one action, an order for removal and consolidation will be made by the supreme court, on the defendant’s motion, on' an affidavit showing that the questions arising in the twro actions are substantially the same, though one of the actions is not at issue, and no affidavit of merits of defense in that action is made by the defendant.
    In case of prejudice to plaintiffs, terms may be imposed as a condition of ordering removal and consolidation.
    This was a motion made by the defendant for the removal of an action pending in the marine court of the city of New York to the supreme court, and consolidation with another action between the same parties, pending in the supreme court; under an order to show cause why the same should not be done, granted, with stay of plaintiff’s proceedings pending decision, by Mr. Justice Donohue, upon all the pleadings and proceedings in said actions, and the defendant’s affidavit-showing briefly the character of the causes of action in both cases, and of the defenses made in the action in the marine court, which was at issue, and to be made in the action in the supreme court, which was not at issue : and that the questions arising in the two actions are substantially the same, and have reference to the same subject matter; and that the continuance of the two actions separately was harassing and annoying to the defendant, who desired that they be consolidated into one action; which the plaintiffs sought to prevent by a motion then pending for placing the action in the marine court on the short cause calendar.
    The plaintiffs made the preliminary objections that the motion could not be heard, as the defendant had not made any affidavit of merits of defense in the action pending in the supreme court: and that the motion was premature, as the latter action was not at issue.
    The court overruled both of these objections.
    The plaintiffs opposed the removal and consolidation, on affidavit, tending to show prejudice in case same was ordered.
    
      Howard Payson Wilds (J. B. & II. P. Wilds, attorneys), for defendant and motion.
    I. This motion is made under sections 817 and 818 of the Code of Civil Procedure, which provide as follows: § 817. “ Where two or more actions, in favor of the same plaintiff against the same defendant, for causes of action which may be- joined, are pending in • the same court, the court may, in its. discretion, by order, consolidate any or all of them, into one action.” § 818. 61 Where one of the actions is pending in the supreme court, and another is pending in another court, the supreme court may, by order, remove to itself the action in the other court, and consolidate it with that in the supreme court.” These provisions apply to all courts of record (Code Civ. Pro. §§ 3347, subd. 66). There has not been found any reported case, as a precedent, as to practice under the foregoing provision for the consolidation of cases in different courts ; the terms of the law seem to be so explicit as not to have given rise to any doubt, requiring judicial decision. The only cases known, have arisen under the provision for consolidation of actions in. the same court.
    II. The affidavit of the defendant, and the pleadings and proceedings in the two actions, upon which the motion is founded, set forth the facts necessary to bring the case within the provisions of the Code under which the consolidation is sought; and show that the notes in question were made with reference to the same account between the parties, and were so credited by the plaintiffs; and that a balance of the account is alleged as a basis- of one of the causes of action.
    III. The causes of action in the two suits are such as may be joined in the same complaint, under section 484 of the Code of Civil Procedure. They are both between the same parties, plaintiffs and defendant, and upon contracts express or implied; one is upon a promissory note and an account, and the other is upon a promissory note.
    IV. The action in the marine court is at issue; and the pleadings disclose the defense there made; the action-in the supreme court is not at issue, but the defendant’s affidavit discloses the nature of the defenses thereto intended.
    
      V. The issues or questions arising in the two actions are the same, or substantially the same, namely : failure of consideration for said notes, and overmeasurements, overcharges, and other irregularities in the account, having reference to the same matters for which said notes were given.
    VI. This is all that practice requires should appear (Dunning v. Bank of Auburn, 19 Wend. 23; Wilkinson v. Johnson, 4 Hill, 46; 2 Wait’s Practice, 556; Campbell Printing Press & Mfg. Co. v. Lyddy, Civ. Pro. Rep. 364). And see, for usual form of affidavit in motion' for consolidation, 2 Wait’s Pr. 559 ; 2 Abbott’s Forms, 658, 659). In Wilkinson v. Johnson, 4 Hill, 46, Bronson, J., says : “ When both actions are to be defended, they may properly be consolidated, where the questions to be tried will be substantially the same in both. The questions may often be identical; as where the suits are brought upon different contracts growing out of the same transaction, and the defense is, that by reason of fraud, usury, want of consideration, or the like, there never was a valid contract ; or where the consideration upon which the contracts were made has wholly failed.” . . . “In such cases, the matter in controversy between the parties may as well be settled in one action as in several; and a consolidation will not only result in a saving of time and expense to the parties, but it will relieve courts and juries from the useless burden of twice investigating the same matter.”
    VII. Consolidation will be made, not only where both suits are brought at the same time, but where they are brought at different times ■; and it will not be a sufficient objection that the second cause of action had not accrued át the time the first suit was commenced (Dunning v. Bank of Auburn, 19 Wend. 23 ; Brewster v. Stewart, 3 Id. 441; Oldershaw v. Tregwell, 3 Carr. & P. 58).
    
      YIII. Issue need not be joined before motion for consolidation ; and merits of defense need not be shown (2 Wait's Practice, 559 ; Brewster v. Stuart, 3 Wend. 441, in which case there was no issue joined, and no affidavit of merits ; and no pretense of a defense to the actions sought to be, and which were consolidated); and Savage, Ch. J., says that the object of the provision of law for consolidation of actions is “ to prevent oppression by the unnecessary accumulation of costsand it is not necessary that a defense on the merits should be shown to entitle a party to the interposition of the court by a consolidation of actions.
    IX. The granting or refusing a motion to consolidate, rests entirely in the discretion of the court (Dunning v. Bank of Auburn, 19 Wend. 23 ; 2 Wait's Practice, 557; Supreme Ct. Sp. T. 1879, Campbell Printing Press Mfg. Co. v. Williamson, 1 Monthly L. Bul. 26.) Thus in N. Y. Com. Pl. 1877, Eleventh Ward Savings Bk. v. Hay, 8 Daly, 328 (affirmed without opinion in 73 N. Y. 609), it was held that refusing consolidation when the causes are called for trial, on the ground of defendant’s laches, is an exercise of discretion not reviewable on appeal.
    X. The motion should be granted, however, with costs to the defendant against the plaintiff.
    
      Adolph L. Sanger (M. S. Isaacs, attorney), for plaintiff, opposed.
    
      
       In McKay v. Reed (N. Y. Marine Court, Special Term, December, 1882), it was held that the marine court of the city of Hew York has power, under Code Civ. Pro. §§ 818, 3347, to remove to itself, in a proper case, an action pending in a district court, between the same parties, to the end that the pleadings in the marine court suit be amended to embrace all the causes of action. .
      
        Motion to consolidate two actions by bringing into the marine court an action subsequently commenced in a district court.
      McAdam, J.—The plaintiff commenced this action against the defendant on November 1, 1882, to recover the amount of three certain promissory notes made by the defendant, aggregating in amount $638.18.
      The defendant answered by pleading a counter-claim in defense. The plaintiff thereafter, and on December 13, 1882, commenced an action against the defendant in the sixth judicial district court, on another promissory note made by the defendant for $101.75. The defense to this note is similar to that interposed to the others. The ' defendant moves to consolidate the two actions, by bringing into this court the action subsequently commenced in the district court. The defendant has brought himself within the rule which entitles a defendant to consolidate actions, and the only question to be considered is one of power. The Code (§ 818) provides that “ where one of the actions is pending in the supreme court, and another is pending in another court, the supreme court may, by order, remove to itself the action in the other court, and consolidate it with that in the supreme court.” Section 3347 of the Code, in defining the powers of the other courts, provides that section 818 (supra) shall be applicable to all courts of record, so that, so far as the present application is concerned, section 818 is, by construction, to be read as if the word “ marine ” court had been inserted in that section instead of the “ supreme.” So construed, it is evident that the necessary power to consolidate exists, by virtue of which this court, by order, removes to itself the action pending in the district court, to the end that the pleadings in the marine court suit be amended to embrace all the causes of action aforesaid. The defendant may present the order necessary to carry this decision into effect.
    
   Donohue, J.

Ordered, that the above entitled action in the marine court of the city of New York, be and the same is hereby removed therefrom into the supreme court in the city and county of New York, and that the two above entitled actions be and they hereby are consolidated into one action in the supreme court in the city and county of New York ; and that the several statements of the causes of action, defenses, counter-claims, and rex>ly made and to be made, in the respective pleadings in said actions, stand as the statements thereof in the said consolidated action.

And upon motion of M. S. Isaacs, plaintiff’s attorney, as a condition of the foregoing order, and the said defendant’s attorneys consenting thereto in open court:

It is further ordered, that the issues in said consolidated action be and they are hereby referred to Chas. F. McLean, counselor at law, to hear and determine the same, and that the defendant’s attorneys accept three days’ notice of trial before said referee.

The said reference to proceed upon three days’ notice to be given by either party, and the hearings to continue before the referee from day to day until completed.

The stay of proceedings heretofore granted herein is hereby vacated.  