Opinion
June 17, 1957
Appeal from an order denying appellants' motion to consolidate their action against the Suffolk County Federal Savings and Loan Association and Sunny Bay Realty Co., Inc., to recover damages for breach of contract, with an action by said association against appellants and others to foreclose a mortgage. Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs, with leave to respondents, if so advised, to demand a jury trial in the first action. Appellants are to have the right to open and close in the consolidated action. Appellants have indicated their willingness, if the actions be consolidated, to waive the right to a jury trial of their action and to deposit into court all mortgage payments due up to the date of trial. Respondents, if so advised, may have a jury trial of the issues raised in the first action prior to the trial of the Association's equitable action. ( Presto Plastic Prods. Co. v. Ball Jewell, 281 App. Div. 742.) In our opinion, the delay of the trial for the brief period will not prejudice the association. We are further of the opinion that, under the circumstances, appellants should have the right to open and close in the consolidated action. Nolan, P.J., Wenzel, Beldock, Hallinan and Kleinfeld, JJ., concur.