Briggs v. Gaunt , 2 Abb. Pr. 77 ( 1855 )

IIoffmaN, J.

The order appealed from in this case, directed, on the application of the plaintiff, that the two actions be consolidated into one, to be prosecuted and defended as sueh, and that the recovery to be had and the judgment to be entered in such consolidated action stand as a recovery and j udgment in both such actions respectively, upon certain conditions imposed upon the plaintiffs and afterwards noticed.

Section 40 of the article of consolidation, contained in the Revised Statutes, provides, that when several suits shall be commenced against joint and several debtors in the same court, the plaintiff may, in any stage of proceedings, consolidate them into one action. (2 Rev. Stats., 883). The references by the revisors to 1 Revised Laws of 1813, would seem to warrant the construction of the section to be this, that where a plaintiff had instituted different suits against different obligors, or other parties jointly and severally liable, he could bring all into one action at any stage of the action, or could have joined them originally, although he was not obliged to do so. Section 38 of the above article gives the court a discretion to consolidate actions of this nature. It is obvious, therefore, that by the letter of the statute such a motion as the present may be made as well by the plaintiff as the defendant. This doctrine has been recognized in several of the States.

The consolidation rule, as it was known in the older cases in our courts, related to a different proceeding. It was to stay proceedings in several actions against different defendants until the determination of one of them, when the ground of suit and defence were the same. This practice principally prevailed in insurance cases, where there were several underwriters in a policy, but traces of the principle of consolidation are apparent in our courts before the statute, and the case of Thompson v. Sheppard (9 Johns., 262) seems to have suggested the language of the act.

We are satisfied, therefore, that there is no reason for restricting the construction of the statute to motions by the defendant. The expediency and justice of many cases warrant its application to plaintiffs also, which it plainly permits.

The order at Special Term will be affirmed, with the modification that the plaintiff must pay the costs of the first action down to the order, with $10 costs of the motion. No costs of the appeal to be allowed to either party.