Kelly v. John Vogel, Inc.

Both actions arose out of the same accident and, except for the questions of contributory negligence and damages, will involve precisely the same issues. Presumably the same witnesses would testify at both trials if the actions were separately tried. Respondent Yockel has failed to show that consolidation will prejudice a substantial right. (Tascio v. Citizens Bank of White Plains, 254 App. Div. 881; Scherman v. Scherman, 261 App. Div. 908; Alexander v. Odgis, 272 App. Div. 917; Shlansky & Bro. v. Grossman, 273 App. Div. 544; Shea v. Benjamin, 275 App. Div. 1003.) The order to be entered may provide that plaintiff Yockel, whose action was first commenced may have the right to open and close, on the trial of the consolidated action. Nolan, P. J., Carswell, Adel, MaeCrate and Schmidt, JJ., concur.