Clark v. Metropolitan Bank

Campbell, J. The plaintiff has commenced sixty-four suits, all of which are at issue, for the recovery of separate penalties of one thousand dollars each, for an alleged violation of the act of May 7th, 1839, entitled “an act concerning foreign bank notes." The defendant moves for an order consolidating all these suits, or staying proceedings in all of them except number one, until the trial or other final determination of such last mentioned suit, on the ground that the questions, which will arise, and the defence, in all such suits, are substantially the same. The statute prescribes, 2 R. S. 480, § 38, that “ whenever several suits shall be pending in the same court, by the same plaintiff, against the same defendant, for causes of action which may be joined, the court, in which the same shall be presented, may," in its discretion, if it shall appear expedient, order the several suits to be consolidated into one action." I do not think it would be expedient to consolidate all these actions, and thus render necessary a trial which would be probably both protracted and embarrassing. At the same time it is manifest that all these numerous suits for separate penalties under the same act, ought not to proceed, at least for the present. I understood it to be conceded by the counsel for both parties, that the suits divided themselves into two classes. It seems to me that it would be just that the plaintiff should notice and bring to trial two of the suits which may be selected by him, one from each class, and that all proceedings in the remaining suits should be stayed until the trial of such two selected suits, with liberty to the defendant, after such trials, to renew the motion for “a consolidation of the remaining suits, 666 or for a further stay of proceedings,” and with like liberty to the. plaintiff, to apply for a consolidation, or to bring the remaining suits to trial; or that the defendants consent that they abide the event of the suits tried, if they were to appeal from the judgment or judgments, if any may be recovered against them. And as the calendar made up on the 1st of October, will be continued through the remainder of the year, the plaintiff may, if he chooses, place the remaining causes on such calendar, but without costs to the plaintiff, if there shall be an order for consolidation, or further stay of proceedings, or if there shall be consent that they abide the event of the suits which may be tried. Duer & Bosworth, J.J., concurred.