Opinion
July 9, 1962
In an Action No. 2, by the plaintiff administratrix against the County of Nassau, commenced in 1955, to recover damages for the decedent's conscious pain and suffering and for his wrongful death by reason of the county's negligence in the maintenance of its premises; and in Action No. 1, by the county against National Surety Corporation, commenced in 1962, to declare that National, under the policy issued by it to the county, is obligated to defend the county in the said negligence action (No. 2) and to pay any judgment which may be rendered therein against the county, the county appeals from an order of the Supreme Court, Nassau County, dated April 18, 1962, which denied its motion to consolidate the two actions (Civ. Prac. Act, § 96) or to direct a joint trial of both actions, the declaratory judgment action to be tried first (Civ. Prac. Act, § 96-a). Order affirmed, with $10 costs and disbursements to each respondent filing a separate brief, payable by the appellant (cf. Kelly v. Yannotti, 4 N.Y.2d 603). Ughetta, Acting P.J., Kleinfeld, Christ, Brennan and Hopkins, JJ., concur.