Opinion
March 8, 1907.
Peter B. Olney, Jr., for the appellant.
Philip K. Walcott, for the respondent.
The actions in this court and in the City Court were upon promissory notes made by the defendant. The action in this court was commenced on November 9, 1906, and in the City Court on the 7th of December, 1906. There is no reason suggested why these actions should not be consolidated, except that the plaintiff may be able to get the case in the City Court upon the short calendar and have the case tried before the action can be tried in the Supreme Court. The action, however, can be disposed of within a reasonable time in this court, and the controversy upon these notes should be disposed of in one action. The defendant, however, should pay the costs in the City Court action and the attachment granted in the City Court should not have been vacated.
The plaintiff is entitled to the same security for the payment of any judgment to which he will be entitled in the consolidated action that he had in the two actions which were consolidated. The fact that the plaintiff had obtained security in the action commenced in this court is no reason why he should be deprived of the security that he has obtained in the City Court action.
I think, therefore, that the order appealed from should be modified by requiring as a condition of the consolidation that the defendant pay the costs in the City Court action and that the provision vacating the attachment granted in the City Court be stricken out, and as thus modified affirmed, without costs.
PATTERSON, P.J., McLAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Order modified as directed in opinion and as modified affirmed, without costs. Settle order on notice.