46 A.D.2d 650 | N.Y. App. Div. | 1974
— Appeals by plaintiff from three orders of the Supreme Court, Queens County, as follows: (1) from one dated November 13, 1973 and made in Action No. 1 (for divorce), which denied her motion for a pretrial examination of the defendant husband; (2) from one dated December 10, 1973 and made in Action No. 2 (inter alia to impress a trust on certain hank accounts), which denied her motion to vacate her default in appearing for trial; and (3) as limited by her briefs, from so much of the third order, dated November 21, 1973, as denied her motion to consolidate these two actions and also a third action. The last-mentioned order consolidated Action No. 2 with said third action. Order dated November 13, 1973 affirmed and order dated November 21, 1973 affirmed insofar as appealed from, without costs. Order dated December 10, 1973 reversed, without costs, motion granted and Action No. 2 ordered restored to the Trial Calendar. On the court’s own motion, a joint trial of Action No. 1 and Action No. 2 (as consolidated with the third action) is hereby ordered. Upon the circumstances of this case it was an improvident exercise of discretion for Special Term to deny plaintiff’s motion to vacate her default in appearing for trial (Benn v. Baltimore & Ohio B. B. Co., 286 App. Div. 992). The affidavits of actual engagement submitted by her counsel provided a sufficient excuse for his nonappearance and were not controverted by any legally cognizable evidence to show that he was not actually engaged as claimed. We agree with Specal Term that Actions No. 1 and No. 2 do not share common questions of law and fact which would permit them to he consolidated under
