Funderburk v. Service Trucking Co.

Order reversed as matter of discretion, with $10 costs and disbursements, and motion granted, with $10 costs, and appellant’s cause of action directed to be first tried. Memorandum: We believe a trial of the action as consolidated would be prejudicial to the interests of the appellant, Spofford Funderburk. All concur, except Kimball, J., who dissents and votes for affirmance. (Appeal from an order of Erie Special Term denying a motion by defendant Funderburk for a severance and a separate trial of his causes of action.) Present — McCurn, P. J., Kimball, Wheeler, Williams and Bastow, JJ.