Stuts v. O'Brien

Defendants O’Brien and Beaudry appeal from an order granting the motion of plaintiff Stuts to consolidate an action by Beaudry in New York County with two actions by Stuts in Kings County and directing that the trial be had in Kings County. Order modified on the law and the facts by inserting an additional paragraph providing that Beaudry shall open first and close last on the trial of the consolidated action. As so modified, the order is affirmed, with one bill of $10 costs and disbursements to appellants. On March 7, 1949, Stuts commenced two actions in Kings County for moneys loaned, by the service of a summons without a complaint. On March 8, 1949, Beaudry commenced an action in New York County for services rendered to Stuts, by the service of a summons together with a verified complaint. On April 15, 1949, issue was joined in the New York County action. On June 18, 1949, issue was joined in the Kings County actions. Under these circumstances, Beaudry must be deemed to have commenced his action first since his was the first action in which a complaint was served. (Kappa Frocks, Inc., V. Alan Fabrics Gorp., 263 App. Div. 326; Dexter Sulphite Pulp & Paper Go. v. Hearst, 206 App. Div. 101.) Furthermore, since issue was joined in the Beaudry action two months before joinder of issue in the Stuts actions, the pleadings in Beaudry’s action first raised the issue of fact which will be the subject of trial in the action and Beaudry has the affirmative on the first issue of fact raised by the pleadings. (Gallagher v. Barth, 268 App. Div. 865.) Carswell, Acting P. J., Johnston, Adel and Wenzel, JJ., concur; MacCrate, J., not voting.