Opinion
March 11, 1953.
Present — Foster, P.J., Bergan, Coon, Halpern and Imrie, JJ.
Both of these actions arose out of the same automobile accident which occurred in Sullivan County on May 8, 1950. Action No. 1 was commenced in New York County, where the plaintiff resides, on January 12, 1951. Action No. 2 was commenced in Sullivan County, where the plaintiff resides, on October 25, 1951. Upon motion of the defendant-respondent James Warren Kelly, unopposed except by the plaintiff in Action No. 1 an order was made at Special Term in Sullivan County consolidating the two actions, fixing the place of trial in Sullivan County, and granting the plaintiff in Action No. 1 the right to open and close. Appellant seeks a modification of the order to provide that the place of trial of the consolidated action be in New York County. While the appellant's action in New York County was started first and this factor is frequently controlling in determining the place of a trial, the rule is not inflexible and absolute. The court at Special Term might properly consider that the cause of action arose in Sullivan County; that a much earlier trial of the action may be had in Sullivan County; the convenience of witnesses, and all of the surrounding circumstances. We may not say that there was any abuse of discretion in granting the order under review. Order unanimously affirmed, without costs.