Opinion
November 10, 1958
Appeal from an order denying appellant's motion (1) to transfer from the Municipal Court of the City of New York a summary proceeding, brought by respondent to recover possession of real property from appellant, and (2) to consolidate said proceeding with this action, brought by respondent for a separation from appellant. Order reversed, without costs, and motion granted. Since appellant cannot obtain affirmative equitable relief in the summary proceeding ( Levy v. Van Dorn Hotel Corp., 60 N.Y.S.2d 795), and since there are questions of law and fact common to the proceeding and the action which may be disposed of in one lawsuit without prejudice to a substantial right of either party (cf. Corcoran v. Scolaro, 267 App. Div. 871), a consolidation should be had to avoid multiplicity of suits ( Datz v. Economy Cotton Goods Stores, 263 N.Y. 252, 254; Scherman v. Scherman, 261 App. Div. 908). Settle order on notice. Wenzel, Acting P.J., Beldock, Ughetta, Hallinan and Kleinfeld, JJ., concur.