Opinion
June 20, 1949.
Present — Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ.
Order denying motion of respondents Bril for consolidation of three actions and denying the cross motion of appellant Storm for a change of venue to Dutchess County of the two actions commenced in Kings County, reversed on the law and the facts, without costs, and the motions to consolidate the actions and for a change of venue from Kings County to Dutchess County granted, without costs. The appellant will have the right, in such consolidated action, to open and close the case. All the parties virtually concede that the three actions here involved should be consolidated. Apart from such concession, consolidation would properly be directed in any event, since all three actions arise out of the same occurrence. The dispute here relates only to the proper place of trial for the consolidated action. "There is nothing in the record that would warrant disregarding the general rule that where consolidation of actions begun in different counties is had, the venue should be in the county whose jurisdiction was first invoked." ( Quality Fruit Wines Corp. v. Singer, 267 App. Div. 834, and cases there cited.) Accordingly, the consolidated action should be tried in Dutchess County, where an action was first commenced. For the same reason, appellant is entitled to the right to open and close ( Brink's Express Co. v. Burns, 230 App. Div. 559).