Shea v. Oussani

The defendant appeals from so much of an order of the City Court consolidating four actions brought by plaintiff against defendant as provides that the order is granted—

“upon condition that within five days defendant pay the plaintiff’s attorney herein $10 costs of this motion; and it is further ordered that, if successful herein, the plaintiff tax costs and disbursements in all actions to date.”

The four actions were on four separate promissory notes, all of which were past due at the time of the commencement of the first action, and the answer in each case contains, with slight and immaterial modifications, the same defenses and counterclaims. The purpose of the statute was to prevent a plaintiff from harassing a defendant by prosecuting different suits for causes of action which could be joined.” Miller v. Baillard, 124 App. Div. 555, 108 N. Y. Supp. 973. The imposing of terms upon defendant was therefore improper; also the provision that, if successful, the plaintiff should be entitled to tax costs in all four actions.

The order should therefore be modified, by striking out that part of the order appealed from, and, as so modified, affirmed, without costs, but with disbursements to the appellant. All concur.