#### The Argyle Company, Appellant, *v.*Foster C. Griffith and Robert A. Messler, Respondents.

First Department,

October 23, 1908.

Action — consolidation discretionary — speedier'trial in inferior court.

The consolidation of actions between the same parties under sections 817 and 818 of the Code of Civil Procedure rests in the sound discretion of the court to which the application is made.

Where two actions between the same parties upon different contracts are pending, one in the Supreme Court and the other in the Municipal Court,- and require the determination of different issues, with the sole exception of the defense of.the Statute of Frauds, tlie action in the inferior court should not be consolidated with that in the Supreme Court. Under the circumstances the plaintiff should be allowed the benefit of the speedier trial obtainable in the . Municipal Court.

Appeal by the plaintiff, The Argyle Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of July, 1908, granting the defendants’ motion to Temove an action pending in the Municipal Court of the city of New York to the Supreme Court, and consolidating, said action with an action pending in the Supreme Court between the same parties.

*Louis Salant*of counsel *[Aronson & Salant,*attorneys], for the appellant.

*Edward W. S. Johnston*of counsel *[Johnston &*Johnston, attorneys], for the respondents.

*263Per Curiam :

Section 817 of the Code of Civil Procedure provides that “ Where two or more actions in favor of the same plaintiff against the same defendant for causes of action which may be joined are pending in the same court, the court may, in its discretion, by order, consolidate any or all of them into one action; ” and section 818 thereof provides that “where one of the actions is pending in the Supreme Court and another is pending in another court, the Supreme Court may, by order, remove to itself the action in the other court and consolidate it with that in the Supreme Court.”

The two actions being between the same parties, and being upon contract, are permitted to be consolidated, but whether they should be so consolidated rests in the sound discretion of the court to which the application is made. The actions grow out of different contracts and for different kinds of goods, and will require the determination of a number of different issues. The issues presented by the action in the Municipal Court, with the sole exception 'of the Statute of Frauds, are in no way involved in the action in the Supreme Court. There seems to be no good reason why the plaintiff, suing upon a perfectly independent contract for an entirely different kind and character of goods to those involved in the Supreme Court action, should not be entitled to the prompt trial which it can obtain of those issues in the Municipal Court. It should not be required to suffer the delay incident to the disposition of the different issues in the action in the Supreme Court. Therefore, the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Present — Patterson, P. J., Ingraham, Laughlin, Clarke and Scott, JJ.

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