Opinion
December, 1924.
Order modified by striking out the provision staying the trial of the Municipal Court action pending the hearing and determination of the Supreme Court action, and by inserting in lieu thereof a provision that the Municipal Court action be removed to the Supreme Court, and consolidated with the action now pending in that court; and as so modified affirmed, without costs. The action in the Municipal Court can be consolidated with the Supreme Court action without prejudice to any substantial right. The plaintiff's motion to consolidate should, therefore, have been granted. (Civ. Prac. Act, § 97.) On appeal this court has the power to reverse, or affirm, wholly or partly, or may modify the order appealed from, and thus bring about the same result as would have followed a correct disposition of the motion at Special Term. (Civ. Prac. Act, § 584; Arnold v. Rothschild's Sons Co., 23 App. Div. 221, 223.) Kelly, P.J., Rich, Jaycox, Manning and Kelby, JJ., concur.
See, also, Civ. Prac. Act, § 96. — [REP.