In Gibbs v. Sokol (216 A.D. 260) it is stated (at p. 263): "The moving parties by the very act of making the motion waive this right."Summary of this case from Phil-Or Textile Shrinking Corp. v. Monarch T.S. Corp.
March 10, 1926.
Appeal from Supreme Court of Erie County.
Frank Gibbons and George W. Greene, for the appellant Rudolph A. Sokol.
H.A. Gordon, for the appellants Robert Sokol, infant, and another.
Frank M. Loomis [ Fritz Fernow of counsel], for the respondents.
Four actions have been brought to recover damages for injuries to person and property suffered in a collision between two automobiles which occurred on a highway in the county of Albany on the 12th day of September, 1925. The cars were driven by Leonard W.H. Gibbs and Rudolph A. Sokol respectively. Jessie M. Gibbs, the wife of Leonard W.H. Gibbs, was a passenger in the car driven by her husband, and Robert Sokol, the infant son of Rudolph A. Sokol, was a passenger in the car driven by his father. Leonard W.H. Gibbs has brought an action against Rudolph A. Sokol to recover for damage to property. Jessie M. Gibbs has brought an action for personal injuries. The complaints in these two actions were served concurrently with the motion papers upon which the order of consolidation was granted. These complaints are not a part of the motion papers, and are not printed in the record, but it sufficiently appears that both the Gibbs actions are founded upon the negligence of Rudolph A. Sokol, and that the care exercised by Leonard W.H. Gibbs is directly involved in his action against Rudolph A. Sokol, and the conduct of Leonard W.H. Gibbs will without question be the subject of inquiry in Jessie M. Gibbs's action. The venue in both of these actions is laid in Erie county. Rudolph A. Sokol has brought an action against Leonard W.H. Gibbs to recover damages for personal injury, for the loss of the services of the son, and for injury to his automobile. Robert Sokol, by his father as guardian ad litem, has brought an action to recover damages for his own personal injuries. Both of these actions are founded upon the negligence of Leonard W.H. Gibbs, and the care of Rudolph A. Sokol is also directly involved in his action, and his conduct will necessarily be the subject of proof in his son's action. The place of trial of both Sokol actions is in Schenectady county.
Common questions of fact will, therefore, be directly or indirectly involved in all of these actions, even though the fundamental questions in the actions brought by Mrs. Gibbs and by Robert Sokol are theoretically different. Section 96 of the Civil Practice Act liberalized the practice in relation to consolidation of actions and the older cases requiring identity of parties are no longer conclusive precedents. ( Goldey v. Bierman, 201 App. Div. 527; Chemello v. Endlich, 236 N.Y. 653. ) We agree with the Special Term that these four actions may and should be tried together, and, therefore, consolidated unless consolidation runs counter to some express provision of the law.
The motion is claimed to be premature because the Gibbs actions are not at issue. As a general rule it is, of course, better that the issues be distinctly defined by the pleadings before consolidation is sought. ( Boyle v. Staten Island Land Co., 87 Hun, 233; Perkins v. Merchants' Lithographing Co., 21 Misc. 516. ) In some cases it is only then that the court may see whether the matters in dispute are such that a consolidation may safely and profitably be ordered. It is not, however, an invariable rule. Where the court can plainly see what the issues are to be, the reason for waiting for the pleadings disappears and the order may be granted before the issues are fully framed. This is such a case. The motion was not premature.
The plaintiff in every litigation has the affirmative upon all issues of fact raised by denials in the answer. This includes the right to open and close, and is a substantial right. ( Lake Ontario Nat. Bank v. Judson, 122 N.Y. 278; Millerd v. Thorn, 56 id. 402; Parrish v. Sun Publishing Assn., 6 App. Div. 585.) We are enjoined by the statute to respect all substantial rights. The moving parties by the very act of making the motion waive this right, but the Sokols oppose consolidation. Their right in this respect may be preserved by providing that Rudolph and Robert Sokol shall be deemed plaintiffs and Leonard W.H. Gibbs and Jessie M. Gibbs defendants in the consolidated action. The order in cases like the present one should provide which parties are to be deemed plaintiffs and which defendants so that the right to open and close may not be left in doubt.
Where the actions sought to be consolidated are brought in different counties, the order of consolidation necessarily results in a change of the place of trial of at least one of the actions. Here the place of trial of two will be changed. The order of consolidation must fix the place of trial of the consolidated action. Such determination, if the actions are transitory in character, rests in the discretion of the court. In the absence of conditions requiring a decision on the basis of convenience of witnesses, such circumstances as the priority of the respective actions, the place of origin of the alleged causes of action, the condition of calendars, and the character of the parties may well be considered. The circumstances in this case that one party living in Schenectady is an infant, that the Schenectady calendar is not crowded, and that the place of origin of the alleged causes of action is near Schenectady county are such as to warrant the exercise of discretion in favor of fixing the venue in Schenectady county, without prejudice, however, to any motion which may hereafter be made to change the place of trial under the pertinent provisions of the Civil Practice Act.
Objection is also offered by the infant Robert Sokol that the consolidation order deprives him of a substantial right to a preference as after consolidation he will no longer be a sole plaintiff or sole defendant, and consequently will no longer be entitled to a preference under section 138 of the Civil Practice Act. In the present case the infant Sokol's right to a preference will be substantially preserved by allowing a preference by order of the court under subdivision 20 of section 138 of the Civil Practice Act for the reason that the consolidated action includes a case which as originally brought was entitled to a preference under subdivision 7 of that section.
The order appealed from should be modified by striking out of the order all thereof after the first two paragraphs beginning with the word "ordered" and inserting in place thereof, "ordered further that in said consolidated action Rudolph A. Sokol and Robert Sokol, an infant, by his guardian ad litem Rudolph A. Sokol shall be deemed plaintiffs, and Leonard W.H. Gibbs and Jessie M. Gibbs defendants, and
"Ordered further that the place of trial of the consolidated action shall be Schenectady county, without prejudice, however, to a motion to change the place of trial, and
"Ordered further that the consolidated action shall have a preference for trial under subdivision 20 of section 138 of the Civil Practice Act," and as modified affirmed, without costs.
HUBBS, P.J., CLARK, DAVIS and CROUCH, JJ., concur.
Order modified in accordance with the opinion and as modified affirmed, without costs of this appeal to either party.