Ehrlich v. Atlas

Order insofar as it grants motion for consolidation and for change of venue reversed and motion denied, and in all other respects order affirmed, without costs of these appeals to any party. Memorandum: Special Term has dismissed the complaints in Actions No. 1 and No. 2 with leave to replead. The same order consolidated all three actions and changed the venue in Action No. 3 to Erie County. In the present state of the pleadings, consolidation should not have been granted and at the very best the actions should have been ordered to be tried together. Any relief in this respect, however, must await the service of the amended complaints in Actions No. 1 and No. 2. Whether or not there is a defect in parties plaintiff in Actions No. 1 and No. 2 has not been raised and we are not asked to pass on this question. Until the amended pleadings have been served the question of venue in Action No. 3 cannot be determined. The order should he reversed so far as it relates to consolidation and change of venue, and is, in all other respects affirmed. This order is made without prejudice of any of the parties to renew their motions after the amended complaints have been served and issue has been joined. All concur. (Cross appeals from an order of Erie Special Term granting a motion by plaintiffs-defendants Ehrlich and others to consolidate three actions and fixing the venue in Erie County, and denying a motion by plaintiff Atlas in the third action for a dismissal of the counterclaim; also compelling plaintiffs in Actions Nos. 1 and 2 to separately state and number.) Present — Vaughan, J. P., Kimball, Williams, Bastow and Goldman, JJ.