Scheidegger v. Alpine Sporting Goods Co.

¶1Orders of the Supreme Court, Queens County, dated December 30,1966 and January 12, 1967, reversed, with one bill of $10 costs and disbursements payable to plaintiff by defendant and third-party plaintiff-appellant and (1) the latter’s motion to consolidate Actions Nos. 1 and 2 granted; and consolidation directed upon the following conditions: (a) the consolidated action shall retain the index and calendar numbers assigned to Action No. 1; (b) the action by plaintiff against the defendant and third-party plaintiff-appellant shall be tried first by the court without a jury; thereafter a jury shall try the issues remaining to be tried in Action No. 2 and the issues remaining to be tried, if any, in the third-party and fourth-party actions in Action No. 1; (e) plaintiff shall have the right to open and close before the jury; and (d) the consolidated action shall be placed on the September 1967 Calendar for trial and all pretrial proceedings shall be completed before September 1, 1967; and (2) cross motion of third-party defendant-respondent granted to the extent of permitting it to file a jury demand, nunc pro tu/nc, in Action No. 1. In our opinion, the denial of consolidation and the failure to permit the third-party defendant-respondent to file a jury demand nunc pro tunc constituted an improvident exercise of discretion. TJghetta, Acting P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.