Tamborin v. Bordi

Defendants, who are husband and wife, appeal from an order of Special Term which, on motion of plaintiff, consolidated the actions. Initially, plaintiff sued defendant husband for an alleged assault. Some 16 months later he commenced a second action against defendant wife on the claim that at the time of its commission, the husband was acting as her agent within the scope of his authority. Both actions arose out of the same event; each will require the same basic proof to establish the assault and injury; the Trial Term status of each is identical. The presence of the issue of vicarious liability in the action against the defendant wife will not prejudice any substantial right of defendants. Consolidation of the actions is appropriate and the discretion of Special Term was properly exercised. (Civ. Prae. Act, § 96.) Order unanimously affirmed, with $10 costs. Present — Bergan, P. J., Gibson, Herlihy, Reynolds and Taylor, JJ.