Crandall v. A. B. Leach & Co. , 225 N.Y.S. 649 ( 1927 )

Crouch, J.

The appeal is from an order consolidating an action for deceit brought by Silas W. Crandall with a similar action brought by Harold T. Conant against the same defendants.

We think there was no abuse of discretion.

It is to be noted at the outset that the decision in Akely v. Kinni cutt (238 N. Y. 466), which is pressed to our attention, dealt with the question of joinder of parties plaintiff under section 209 of the Civil Practice Act, where the test is the existence of a “ common question of law or fact.” The instant case, however, relates to the consolidation of actions under section 96 of the Civil Practice Act, and the test is whether the particular actions can be consolidated “ without prejudice to a substantial right.”

While in the course of administration the two concepts may sometimes overlap, they are none the less distinct; and the latter is much wider in scope. That actions proposed to be consolidated have no common question of law or fact, or that the causes of action are not such as can be joined under section 258 of the Civil Practice Act, are, no doubt, matters for consideration as bearing on the question of whether a substantial right would be prejudiced by consolidation. But they are not conclusive. (Goldey v. Bierman, 201 App. Div. 527.) This court has said that “ a wide discretion should be allowed the Special Term in granting and denying motions to consolidate.” (Dexter Sulphite Pulp & Paper Co. v. Hearst, No. 1, 206 App. Div. 101, 103.) Such discretion should not be interfered with “ unless it is clear that some substantial right is in jeopardy; and the burden of showing that rests upon the party objecting.” (Sherlock v. Manwaren, 208 App. Div. 538, 541, 542.) To sustain that burden the appellants here urge only one claim of prejudice. They say that there is danger that the jury might give the plaintiff in one action the benefit of false representations made only to the plaintiff in the other action. But we have been told that “ we cannot assume that it [the jury] will not consider and properly decide by themselves the separate issues which arise in connection with each cause of action.” (Akely v. Kinnicutt, 238 N. Y. 466, 475.) The plaintiff Crandall pleads two causes of action arising from alleged false representations made on two different occasions. In the second cause of action there are set forth representations included in the first cause and others not so included. Suppose the representations alleged in the other action as having been made to the plaintiff Conant had been made to Crandall; or that Conant had assigned to Crandall his cause of action; and that Crandall had pleaded those representations as a basis for a third cause of action. It would then have appeared that many of the representations in the three causes of action were identical, but that some were not, though all related to the same subject-matter. If, under that hypothetical pleading, the Special Term, upon motion, had refused to sever, we would not, I think, be justified in upsetting such an exercise of discretion. (Mende v. Mende, 218 App. Div. 791.) The situation here, so far as the question of prejudice to a substantial right is concerned, does not differ in principle from that involved in the Mende case, which was an action for fraud, where the defendants may have participated in the fraudulent acts with varying degrees of liability. It was held that there was no occasion to sever the action.

Apart from the foregoing considerations it may be suggested that even though there were separate trials, the evidence of fraud-lent acts in the one case might be admissible in the other on the question of intent. (Boyd v. Boyd, 164 N. Y. 234, 241, and cases cited; 27 C. J. 60.) If that be so, there is little left to the claim of prejudice to substantial rights from consolidation.

The order should be affirmed, with ten dollars costs and disbursements.

All concur, except Clark and Sawyer, JJ., who dissent and vote for reversal in an opinion by Sawyer, J. Present — Hubbs, P. J., Clark, Sears, Crouch and Sawyer, JJ.