Opinion
November 26, 1941.
Present — Hill, P.J., Crapser, Bliss, Heffernan and Foster, JJ.
The five actions designated in the title were commenced for damages growing out of one automobile accident. The venue of Action No. 1 was laid in Sullivan county, the venue of Action No. 2 in Kings county, the venue of Action No. 3 in Bronx county, the venue of Action No. 4 in New York county, and the venue of Action No. 5 in Bronx county. By an order dated March 13, 1939, granted at Special Term in Sullivan county on that day, the actions designated Nos. 2, 3, 4 and 5 were consolidated with the action designated No. 1. The order provided that the plaintiffs therein, Henry Keim and Marie Keim, should continue as plaintiffs in the consolidated action. The attorneys for the plaintiffs in Actions Nos. 3, 4 and 5, on March 29, 1939, applied for a reargument of the motion to consolidate. On May 12, 1939, the application for reargument was granted, but the original order consolidating the actions was adhered to, with one exception, and it was directed that said consolidated actions and all the issues involved in each of the five actions should be tried together with Action No. 1, pending in Supreme Court in Sullivan county. An appeal was taken to the Appellate Division by the plaintiffs in Actions Nos. 3, 4 and 5, but no papers in said appeal were ever served. The consolidated actions were duly noticed for trial and appeared on the calendar of the May, 1939, term in Sullivan county, but the plaintiffs in Actions Nos. 3, 4 and 5 asked that the cases go over the term, which was granted. On May 8, 1939, plaintiffs in Actions Nos. 3, 4 and 5 obtained an order to show cause, granted in New York county, in connection with a motion made by them to change the place of trial of the consolidated actions from Sullivan county to New York county for the convenience of witnesses and to promote the ends of justice. The motion was made returnable before the Trial Term of Supreme Court in Sullivan county, and when the consolidated actions were marked ready on the day calendar, the plaintiffs in Actions Nos. 3, 4 and 5 requested that it be put over the term on the ground that an application for change of place of trial was pending. The motion for change of place of trial was later denied. In October, 1939, the consolidated actions were moved by the plaintiffs upon the alarm calendar and subsequently upon the day calendar and they were marked "ready." They went over the term and were subsequently noticed for the 1940 term in Sullivan county and were marked over said term. The consolidated actions were on the March, 1940, term in Sullivan county and were marked ready for trial by the plaintiffs Keim. The attorneys for the plaintiffs in actions designated Nos. 3, 4 and 5 failed to answer the call of the calendar held by the court on the opening and following days. The presiding justice had the counsel for the plaintiffs Keim notify all the attorneys for the plaintiffs in the actions designated Nos. 3, 4 and 5 that the consolidated action was on the ready calendar for Monday, March eleventh, and that all parties should be ready for trial at that time. On that day the consolidated actions were answered ready, but owing to a case that was on trial and which was continued the actions were not reached until March 19, 1940, when proof was submitted on behalf of Henry Keim and Marie Keim, plaintiffs in said consolidated actions, and one judgment was rendered in favor of Henry Keim in the sum of $500 and in favor of Marie Keim in the sum of $1,250, against the defendant Orel, and dismissing upon the merits the actions of the plaintiffs in the actions designated as Nos. 3, 4 and 5 against the defendants Keim. There was no appearance in said Actions Nos. 3, 4 and 5 by the attorneys for the plaintiffs, although duly notified. An order to show cause, dated April 13, 1940, was obtained by the plaintiffs in Actions Nos. 3, 4 and 5, and a motion was made for an order modifying and amending said judgment by striking therefrom "upon the merits" in so far as it relates to Actions Nos. 3, 4 and 5 and by adding thereto "that the complaints of the plaintiffs" in said actions were dismissed without prejudice for non-appearance of the plaintiffs' attorneys and not upon the merits. The motion was returnable at Troy on April 19, 1940, and was denied, with costs, and a motion was made to resettle that order and was denied, and the appeal in this case is from that order. The order of consolidation merged all issues into a single action ( Hull v. Shannon, 139 Misc. 564), and judgments in such consolidated actions were final judgments in favor of Henry Keim and Marie Keim, duly rendered in accordance with section 494-a of the Civil Practice Act. Order appealed from unanimously affirmed, with costs.