Opinion
December 16, 1957
On or about March 27, 1957, Dictograph Products, Inc., commenced action in the Municipal Court of the City of New York, Borough of Queens, Fourth District, to recover alleged overpayments on account of bonuses from Richard F. Lehman, its former employee. On or about April 2, 1957 Lehman commenced action against Dictograph Products, Inc. in the Supreme Court, Queens County, to recover balances of salary and bonuses alleged to be due and unpaid. This appeal is from so much of an order removing the Municipal Court action to the Supreme Court and consolidating it with the action pending in that court, as provides that Lehman shall be the plaintiff in the consolidated action with the right to open and close and that Dictograph Products, Inc., shall be the defendant therein. Order modified by striking therefrom the fourth ordering paragraph and by providing instead that Dictograph Products, Inc., shall be the plaintiff in the consolidated action with the right to open and close and that Lehman shall be the defendant therein. As so modified, order, insofar as appealed from, affirmed, with $10 costs and disbursements to the appellant. There are no special circumstances which warrant denial to appellant, whose action was first commenced, of the right to open and close. ( Brink's Express Co. v. Burns, 230 App. Div. 559; Bril v. Storm, 275 App. Div. 954.) Nolan, P.J., Murphy, Ughetta and Hallinan, JJ., concur; Kleinfeld, J., dissents and votes to affirm the order without modification, on the ground that the granting of the right to open and close in a consolidated action is discretionary. No abuse of discretion has been demonstrated on the appeal. ( Crescent Puritan Laundry Co. v. McNamara, 254 App. Div. 646.)