Kramer Bros. Freight Lines, Inc. v. M & C Transfer Co.

The consolidation would defeat insurer’s purpose in bringing the declaratory judgment action, which was commenced prior to service of the third-party complaint in the other action and involved the same issue. Appellant insurer, if it proceeds promptly to notice the declaratory judgment action for trial, may obtain an advance determination of its liability so that it may know what responsibility it has, if any, to defend the other action, Consolidation, therefore, because the declaratory judgment action can be reached for trial very shortly, would serve only to delay such trial and thus deprive plaintiff insurer of a substantial right. (Tripp, Guide to Motion Practice [rev. ed.], § 24, p. 59.) Concur — Botein, P. J., Breitel, Valente, Eager and Steuer, JJ.