#### Clara B. Miller, Respondent, *v.*Edward V. Baillard, Appellant.

Second Department,

February 28, 1908.

Practice — consolidation of actions — right to bring action on facts previously pleaded as defense.

A defendant sued in the Supreme Court for moneys paid to him to construct an engine which he refused to deliver, is not bound to counterclaim a demand for the value of material and services furnished, but may merely set up his lien as a defense and bring a cross-action to recover the amount in the Municipal Court of New York. 1

*556The plaintiff, in the first action, made defendant in the second and therein 'counterclaiming on the cause set out in the first action, is not entitled to have the two actions consolidated under sections 817 and 818 of the Code of .Civil • Procedure. ■

The purpose of said sections is to prevent a plaintiff from harassing a defendant . by prosecuting different suits for causes of action which could be joined..

Appeal by the defendant, Edward V. Baillard, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Suffolk on the 9th day of December, 1907, removing to the Supreme Court an action pending in the Municipal Court and consolidating it with an action in the Supreme Court, pursuant to sections 817 and 818 of the Code, of Civil Procedure.

*Henry T.*Stetson, for the appellant.

*I. S.*Lambert, for the respondent.

Miller, J.:

. The action in the Supreme Court was brought to recover the sum of $200 alleged to have been paid to the defendant to construct a certain machine for the plaintiff, it being averred that the defendant had neglected and refused to deliver the. machine. The defendant for answer admitted the receipt, of the $200, and pleaded as a defense that he had a lien on said machine for services rendered and materials furnished of the value of $380.70, of which the sum of $13.20 had been paid. Subsequent to the commencement of the Supreme' Court action the defendant in that action sued the plaintiff in the Municipal Court to recover the sum of' $367.57, and the defendant in the Municipal Court action pleaded a general denial and a counterclaim for said sum, to recover which said action in the Supreme Court was brought.

It is' undisputed that the order appealed from was riot justified unless authorized by sections 817 and 818 of the Code of Civil Procedure. Section 817 authorizes consolidation *“*Where two . of more actions, in favor of the same plaintiff against the same defendant, for causes of action which may be joined, are pending.” .■ The appellant asserts that the plaintiffs in the two actions ■are not the same and that the defendants are not the same, the plaintiff -in one being the defendant in the other, and the respond*557gnt meets this argument by saying that the defendant in the Municipal Court action set up a counterclaim for the same cause of action alleged by her- in the Supreme Court action, and that while nominally defendant in the Municipal Court action, so far as her counterclaim is concerned and for the purposes of the Code sections referred to *supra,*she is to be regarded as a plaintiff. I think, 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. While the defendant in the Municipal Court action may be regarded as plaintiff so far as her counterclaim is concerned, that cause of action is not one which could be joined with the cause of action alleged in her complaint in the Supreme Court action — it is the identical cause of action; instead of consolidating two such actions, the pendency of one could be pleaded in bar of the. other. The defendant did not see fit to plead his cause of action as a counterclaim in the Supreme Court action, but alleged as a defense that he had not broken his contract by failing to deliver, for the reason that he had a right to retain the machine until his lien was discharged. He had a right to bring a cross action, and he chose to' bring it in a coui’t where he could get a speedy trial. *(Brown*v. *Gallaudet,*80 N. Y. 413; *McGrath*v. *Maxwell,*17 App. Div. 246; *Consolidated Fruit Jar*Co. v. *Wisner,*38 id. 369; *Jordans. Underhill,*91 id. 124; *Jones v. Leopold,*95 id. 404.) Indeed it would seem that the respondent might well have commenced her action in the Municipal Court, where doubtless all of the issues would speedily have been disposed of in one action, as can now be done in the action brought by the appellant in the Municipal Court if that action be restored to the Municipal Court, because the pleadings in that action raise all the issues between the parties. Two different causes of action are involved — the Supreme Court action, which turns solely on whether the defendant had broken the contract, and the Municipal Court action, brought to recover the value of services rendered and materials furnished. In those two actions the plaintiffs are not the same. The only effect of the consolidation was to compel th,e defendant to plead as a counterclaim a cause óf action for which he had a right to bring a cross action, and to transfer the Municipal Court action, ih which all of the issues between the parties could be speedily tried, *558to the Supreme Court, where so speedy a trial cannot be had. We think the order was not authorized by said section 817 of the Code of 'Civil Procedure *(Mayor*v. *Coffin,*90 N. Y. 312), and that even if authorized, the discretion to grant it was unwisely exercised in this case.

The order should be reversed, with ten dollars ' costs and disbursements, and the motion denied, with costs.

Woodward, Jenks, Gaynor and Rich, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.