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Supreme Court, January, 1918.

[Vol. 102.

authority of City Trust, Safe Deposit & Surety Co. v. American Brewing Co., supra, pleads a cause of action upon contract and upon which the damages were liquidated and were assessable before the clerk. It, therefore, follows that the application to the courts for judgment is unnecessary and that the amount of costs that the plaintiff is entitled to is the sum of fifteen dollars and disbursements.

It is not necessary in a decision of the motion for consolidation to decide whether there are 100 causes of action or only one cause of action and this court expressly does not decide that point. Assuming there are 100 causes of action they all arise upon contract and were between the same parties and all had accrued prior to the bringing of the first action and there is no reason apparent to this court why they should not all have been united in one action.

All the causes of action are essentially the same, involve the same parties, arise out of the same transactions, are based upon the same contract and to a large extent are to be proved by the same evidence. They could be all joined and, therefore, consolidation will be enforced to prevent harassment of the defendant, particularly where it is shown that no defense is intended. Dunning v. Bank of Auburn, 19 Wend. 23. In that case the court says: "The affidavit should state, either that no defense is intended, or that the defense will be substantially the same in both." And this case is cited and approved in the case of Posner v. Rosenberg, 153 App. Div. 254. The defendant Globe Indemnity Company, in its moving papers for consolidation at folio six, says: "That defendant, Globe Indemnity Company, does not intend to defend any of said suits and has already defaulted in answering action No. 1, and an application for judgment therein is now pending before this court."

Misc.]

Supreme Court, January, 1918.

In Miller v. Baillard, 124 App. Div. 555, the court in referring to section 817 of the Code of Civil Procedure says: "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." It, therefore, follows that the causes of action should be consolidated.

The plaintiff insists strenuously that if consolidation is granted the costs accrued in each action up to the date of the consolidation would have to be imposed as a condition of the consolidation and in support of that contention cites the case of Frank Brewing Co. v. City of New York, 19 App. Div. 628, and the case of Goepel v. Robinson Machine Co., 118 id. 160. I do not think that either of these cases is in point or controlling in the decision of this motion. In the case of Frank Brewing Co. v. City of New York, five actions were brought by the plaintiff against the mayor, aldermen, etc., of the city of New York to recover back different sums of money, representing the proportionate shares of excise license fees paid by the plaintiff's several assignors for liquor licenses for the unexpired terms, which said licenses had to run after June 30, 1896, on which day, according to the provisions of the Liquor Tax Law, said licenses became inoperative. The defendants appeared in each action and obtained numerous extensions of time to plead; and a stipulation was entered into in each that short notice of trial be accepted, and that issue should be of the original date. Several months after the commencement of the actions, answers were filed and were never withdrawn. Thereafter, on an affidavit that there was no defense, and on the defendant's motion, an order was made consolidating the actions and allowing the plaintiff but one bill of costs in the five actions,

Supreme Court, January, 1918.

[Vol. 102.

from which order the plaintiff appealed, and under the circumstances of that case the court reversed the order in so far as the same denied the plaintiff the right to tax the costs that had accrued up to the time of the making of the motion. This decision was handed down June 18, 1897; the Appellate Division in the same department, March 8, 1907, in the case of Goepel v. Robinson Machine Co., modified an order consolidating an action in the City Court with an action in the Supreme Court in which action an attachment granted in the City Court had been vacated and a consolidation order granted without costs; and under the circumstances of that case the court in modifying the order allowed the plaintiff the costs in the City Court action and struck out the provision vacating the attachment granted in the City Court.

In February, 1912, the Appellate Term of the Supreme Court in the city of New York, in the action of Shea v. Oussani, 133 N. Y. Supp. 1075, modified a consolidation order where there were four actions on four separate promissory notes all past due at the time of the commencement of the first action, in which the plaintiff was granted the right to tax costs and disbursements in all actions to date. The court says: "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."

It therefore, follows that defendant's motion to consolidate actions Nos. 2 to 100 inclusive must be granted without costs. All the pleadings in the said actions stand as the pleading in the consolidated action, permitting the entry of one judgment; each of the separate items with interest being stated therein with one bill of costs. The defendant Globe Indemnity Company having permitted a default in action No. 1, said

Misc.]

Supreme Court, January, 1918.

action is not included in the consolidation order. Under the circumstances of the case no costs are allowed to the defendant in the application to the court for judgment.

Ordered acordingly.

Matter of the Application of HENRY D. QUINBY, Individually and as Comptroller of the City of Rochester, and the CITY OF ROCHESTER for a Writ of Prohibition v. THE PUBLIC SERVICE COMMISSION OF THE STATE OF NEW YORK FOR THE SECOND DISTRICT and the NEW YORK STATE RAILWAYS.

(Supreme Court, Rensselaer Special Term, January, 1918.) Prohibition-application for writ of, when denied contracts public service commission - - statutes — city of Rochester.

Upon the hearing of an application by the city of Rochester for a writ of prohibition to prevent the defendant railway company from applying to the public service commission for permission to increase its rate of fare and to prevent the commission from hearing the application, it appeared that the city, by a contract with one of defendant's predecessors more than twenty years before, had agreed never to charge more than a five-cent fare for one continuous ride on its road. Held, that as said contract had been judicially determined invalid in the "North Shore" case (175 App. Div. 869) a contention that the public service commission was without jurisdiction on the ground that said contract was valid and binding was untenable and the application for the writ will be denied.

The provision of section 173 of the Railroad Law that: "Nothing herein contained shall be construed as modifying or affecting the terms of " the contract in question is nothing more than a legislative declaration that said contract was not interfered with and cannot be construed as a ratification thereof, particularly as by section 181 of the Railroad Law the legislature reserved to itself and to the public service commission the right to change the rate of fare on any railroad including that of defendant.

Supreme Court, January, 1918.

[Vol. 102.

It cannot be assumed that by the special statute (Laws of 1915, chap. 359), by virtue of which certain territory was annexed to the city of Rochester, the legislature intended to repeal the general law which reserves to it and to the public service commission the right to regulate fares.

APPLICATION for a writ of prohibition.

Benjamin B. Cunningham, corporation counsel, for relator.

Ledyard P. Hale, for public service commission, second district.

Kernan & Kernan (Warnick J. Kernan and Daniel M. Beach, of counsel), for New York State Railways.

HOWARD, J. The city of Rochester, by a writ of prohibition, seeks to prevent the defendant New York State Railways from applying to the public service commission for permission to increase its rate of fare, and prevent the public service commission from hearing the application.

It may be assumed that this court is fully empowered to issue this writ if there is danger that the public service commission will attempt to usurp jurisdiction with which it is not vested. Is there any such danger? Let us see.

On February 25, 1890, one of the predecessors of this defendant railroad entered into a contract with the city of Rochester whereby it agreed never to charge more than a five-cent fare for one continuous ride on its road. If this contract is forever binding upon the railroad, and the public service commission is not authorized by the law to grant relief, then the commission has no jurisdiction and it would be idle for the railroad to go to the public service commission, and unlawful for the commission to receive them, and this writ should issue.

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