Opinion
May 5, 1954.
Present — McCurn, P.J., Vaughan, Kimball, Piper and Wheeler, JJ.
Order reversed, with $10 costs and disbursements, and motion granted, without costs. Memorandum: Plaintiff in the Supreme Court action seeks to recover damages for personal injuries and property damage arising out of an automobile accident involving plaintiff's automobile and the automobile of the defendant. In the City Court actions the parties are reversed. Plaintiff in the City Court actions is the defendant in the Supreme Court action and seeks to recover in one City Court action for his personal injuries, and in the other City Court action for his property damage; all arising out of the same accident. There are no other parties in any of the actions. Common questions of law and fact are involved and it was an improvident exercise of discretion to deny the motion. The order appealed from, therefore, should be reversed, and the motion granted. The affidavit does not disclose all of the circumstances which may have a bearing upon the determination as to which party should be accorded the right to open and close in the consolidated action. We therefore leave that question for the determination of the trial court. (See Brink's Express Co. v. Burns, 230 App. Div. 559. ) All concur.