Opinion
February 25, 1970
In an action by a wife to annul a separation agreement entered into with her husband in November, 1964 (Action No. 1), plaintiff appeals from an order of the Supreme Court, Kings County, dated October 2, 1969, which upon the court's own motion, directed consolidation of that action with Action No. 2, which is a suit by the same plaintiff, against the same defendant and a corporation whose capital stock is owned solely by the defendant-husband, to recover for services allegedly rendered to and monies invested in the corporation. Order reversed, on the law and the facts, without costs, and actions severed. In our opinion, the trial court acted improperly when, upon its own motion, it ordered consolidation of the actions (see CPLR 602 and Practice Commentary thereon in McKinney's Cons. Laws of N.Y., Book 7B, CPLR 501 2200, p. 116). Admittedly a court has broad powers to order consolidation but they should not be exercised in a situation as at bar where neither side requests such action, where approximately five months have elapsed since both sides offered their proof in Action No. 1 and where Action No. 2 has not yet been reached for trial. Brennan, Acting P.J., Rabin, Hopkins, Benjamin and Munder, JJ., concur.