Carter v. Sully

¶1The plaintiff brought an action in this court against, defendant as surety on a lease for rent that had accrued during the month of November, 1891. Subsequently he brought another action in this court against this defendant, on the same suretyship, for rent for the months of' December, 1891, and January, February, and March, 1892. These two actions were consolidated by an order entered on April 8,1892, and a new complaint in the consolidated actions was served on that day. Thereafter, and,, on April 11, 1892, the plaintiff commenced another action in the city court off New York, founded on the same instrument, for the rent of the month of April, 1892. Defendant now moves to consolidate this city court action with the consolidated actions now pending in this court. Section 817 of the Code-provides that 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, consolidate any or all oí them into one action. And section 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. The question presented on this motion is, has the superior court the same right in this respect as the supreme court? Section-3347, subd. 6, Code, provides that-sections 817-819. inclusive, apply to all courts of record. Section 267 of the-*245•Code provides that, where a superior city court has jurisdiction of an action or special proceeding, it possesses the same jurisdiction, authority, and power in and over the same, and in the course of proceedings therein, which the supreme court possesses in a like case; and it may render any judgment or grant any relief which the supreme court might render or grant in a like case. In the case of Sire v. Kneuper, 3 N. Y. Supp. 533, the court of common pleas, special term, held that the court had the power, under sections 818 and 3347 of the Code, to remove an action brought in a district court of New York city into the common pleas for the purpose of consolidating the action with one pending in the common pleas. In the case of McKay v. Reed, 12 Abb. N. C. 58, note, the city court of New York held that that court also could remove causes pending in district courts to the city court for purposes of consolidation. Under the three sections of the Code above cited, 1 believe the court has power to grant this motion; and it becomes a matter of discretion whether it should exercise that power. Bank v. Hay, 8 Daly, 328, 331. It appears that the causes of action are such as may be joined in the same complaint, and that the questions which will arise in both of the actions are substantially the same, and that the defense will be substantially the same in both. If, therefore, it does not appear that the plaintiff will suffer any great delay or other prejudice, the motion should be granted. Dunning v. Bank, 19 Wend. 23. The fact that the suits were brought at different times, and that the second cause of action had not accrued at the time the first suit was commenced, is no objection to the motion. Dunning v. Bank, supra. In case of any prejudice to the plaintiff, terms may be imposed as a condition for. granting the motion, (Soloman v. Belden, 12 Abb. N. C. 58;) but I cannot see how plaintiff can be seriously inconvenienced by consolidating the action. The motion is granted, without costs. The order must provide that the complaints in the two actions stand as the complaint in the consolidated action, and it must require the defendant to serve his answer in the actions thus consolidated on or before April 28,1892, the day upon which the time to answer will expire in the action pending in this court.