Berlin Son, Inc., v. N.Y. City Omnibus Corp.

Full title: I. BERLIN SON, INC., Appellant, v. NEW YORK CITY OMNIBUS CORPORATION…

Court: Supreme Court, Appellate Term, First Department

Date published: May 24, 1939

171 Misc. 674 (N.Y. App. Term 1939)

14 N.Y.S.2d 661

Opinion

May 24, 1939.

Appeal from the Municipal Court of the City of New York, Borough of Manhattan, First District.

Einstein Einstein, for the appellant.

Henry J. Smith, for the respondent.

PER CURIAM.

As the insufficiency of the defense of another action pending appears upon the face of the answer, the use of the affidavit in aid of same was improper. ( Welch v. City of Niagara Falls, 210 A.D. 170; Reddington v. Elco Merchandising Corp., Inc., 236 A.D. 64.) That both actions involved the same accident and common questions, may be a ground for consolidation, at least for purposes of trial, but the prior action is not another action pending between the same parties for the same cause. ( Tyler v. Standard Wine Co., 52 Misc. 374; affd., 121 A.D. 928; Tarbell v. Howard, 162 Misc. 606.)

Order reversed, with ten dollars costs, and motion granted.

All concur.

Present — HAMMER, SHIENTAG and NOONAN, JJ.