Bush v. Abrahams

McGown,

(concurring.) Justice Ehrlich in his decision herein says: “The statute has fixed the limit of jurisdiction of this court, and the parties may not enlarge it by consent, ” etc., thus evidently basing his decision upon the want of power in the court. The court having acquired jurisdiction in the five actions referred to brought by the plaintiffs against the defendants, think ample power was conferred upon it by section 817 of the Code of Civil Procedure,—which is expressly made applicable to all courts of record by subdivision 6 of section 3347,—to consolidate the five actions. But, inasmuch as by section 817 it is provided that where two or more actions in favor of the plaintiff against the same defendant are pending in the same court the court may in its discretion by order consolidate any or all of them; and inasmuch as the court has not exercised the discretion conferred upon it by the section last cited, I concur with Justice Neiirbas in his opinion herein, and think that the order appealed from should be reversed, with $10 costs and disbursements, and that the matter should be remanded to the special term for such action as the special term justice may in the exercise of his discretion think proper.