267 A.D. 834 | N.Y. App. Div. | 1944
Motion to consolidate two causes of action founded upon the same claimed contract obligations. Order granting motion to consolidate and fixing the venue as Westchester County, with privilege to the plaintiff in the New York County action to move for a change of venue, modified on the law and the facts so as to provide that - “ Action No. 1” be removed from Westchester County to New York County, and that the consolidated action be tried in New York County; and further modified by striking therefrom the fourth ordering paragraph. As so modified, the order, insofar as appealed from, is affirmed, with ten dollars costs and disbursements to appellant. The venue in the so-called “ Action No. 1 ” was laid in Westchester County. It was not in fact Action No. 1. It was Action No. 2; hence, since all the parties litigant desired consolidation, the venue should have been fixed as New York County, that being the venue laid in the so-called “ Action No. 2” which in fact was Action No. 1. That action not only was commenced first but was the action in which issue was first joined. There is nothing in the record that would warrant disregarding the general rule that where consolidation of actions begun in different counties is had, the venue should be in the county whose jurisdiction was first invoked. (Rogers V. King, 8 Paige 210; Groshon v. Lyon, 16 Barb. 461; Travis v. Myers, 67 N. Y. 542; Lee V. Schmeltzer, 229 App. Div. 206.) Close, P. J., Hágarty, Carswell, Adel and Aldrich, JJ., concur.