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Ella McAllister, as Administratrix, etc., of George Harvey, an Infant v. William E. Drislane, Jr., Appellant Ella McAllister, as Administratrix, etc., of LaVerne Harvey, an Infant v. William E. Drislane, Jr., Appellant Marie Ryan, an Infant, by Agnes Ryan, Her Guardian ad Litem v. William E. Drislane, Jr.
Opinions in this case
- Majority — Heffernan
- Concurrence — McNamiee
Heffernan, J.
On October 16, 1932, Marie Ryan, George Harvey and LaVerne Harvey were passengers in an automobile which collided with a car owned by defendant and operated by his son, as a result of which Miss Ryan was injured and her two companions killed.
Thereafter, Miss Ryan instituted an action in the County Court of Albany county to recover damages because of the alleged negligence of defendant and like actions were brought by the representatives of decedents in the Supreme Court with the venue in Albany county. Defendant moved to transfer the Ryan action to the Supreme Court and to consolidate it with the companion suits in that court. The court at Special Term denied the application and from that order defendant has come to this court.
__ -Section 96 of the Civil Practice Act provides that an action inay be severed and actions may be consolidated whenever it can be done without prejudice to a substantial right. Section 97 of the same act is to the effect that where one of the actions is pending in the Supreme Court and another is pending in a different court, the Supreme Court may by order remove to itself the action in the other court and consolidate it with that in the Supreme Court. These sections of the Civil Practice Act make substantial changes in the practice as contained in the Code of Civil Procedure. The object of these provisions is to avoid a multiplicity of suits, to accelerate the administration of justice and to prevent useless expense.
In this department it is proper practice to consolidate in
[87] one action various claims for negligence arising out of an automobile collision. The same result is accomplished when the trial judge directs that all such actions be tried together. There is nothing difficult or complicated about such trials.. Usually the only questions to be determined are who is at fault and the amount of damages. It is true, as suggested on the argument, that in a death case different principles of law are to be applied on the questions of contributory negligence and damages than those which are applicable in the case of an injured plaintiff. These rules, however, are not difficult of explanation or application. No good reason suggests itself to us why practically all actions of this character should not be consolidated or tried together.
Cases may arise of course where it is impossible to do this without prejudice to the rights of litigants.
Respondent urges that Levine v. Products Mfg. Co. (217 App. Div. 762) requires an affirmance of the order under review. In the case cited the facts are somewhat obscure. We are not persuaded by the reasoning of that decision that consolidation should not be granted merely because the issues are not the same.
In the case under consideration the Special Term denied the application in the exercise of discretion. We believe that a wide discretion should be allowed the Special Term in the decision of motions of this character. The power, however, is not unlimited. This court will not hesitate to exercise its supervisory authority whenever it is satisfied that the discretion has been abused. We cannot say from the record that the order appealed from passed beyond the limits of a sound judicial discretion and consequently it is affirmed, with ten dollars costs and disbursements.
Hill, P. J., Rhodes and Crapser, JJ., concur; McNamee, J., concurs in the result, with a memorandum.