Gamble v. Fraleigh
| Decision Date | 02 November 1955 |
| Citation | 146 N.Y.S.2d 146,1 Misc.2d 347 |
| Parties | Robert I. GAMBLE, Plaintiff, v. Harrison FRALEIGH, Jr., and Harrison Fraleigh, Sr., Defendants. Robert I. GAMBLE, Plaintiff, v. Roy C. WILSON, Defendant. |
| Court | New York Supreme Court |
Samuel Justin Jackman, New York City, for plaintiff (both actions).
Matthew E. Lawless, New York City, for defendants in Action No. 1.
Richard E. Joyce, New York City, for defendant Wilson (Action No. 2) Michael A. Hayes, Trial Counsel, New York City. MARTIN M. FRANK, Justice.
This is a motion to consolidate two pending actions pursuant to Sec. 96, Civil Practice Act, or in the alternative for a joint trial pursuant to Sec. 96-a Civil Practice Act. Robert I. Gamble is the sole plaintiff in both. In the action arbitrarily designated as No. 1, it is alleged that he received personal injuries through the negligence of the defendants named therein on September 5, 1951. In the second, he alleges that on June 28, 1952, he was injured by reason of the negligence of the defendants named in that cause.
Consolidation is thus sought of two separate actions brought by the same plaintiff against two separate defendants involving two independent accidents occurring some nine months apart. In both causes, the plaintiff alleges he received serious and extensive injuries to the cervical spine and to the lumbar sacral area.
The plaintiff in his application for the relief sought urges that injustice may result at each separate trial, in that the defense may attempt to establish that the plaintiff's injuries resulted from the accident in the cause not then being tried.
The defendants contend that they may be prejudiced by a joint trial both as to the question of liability and apportionment of damages, if any.
Complete consolidation cannot be granted under Sec. 96, C.P.A. As we view it, the requirement under that section is for a fusion of the pleadings and the issues as well as the parties. Our learned colleague, Mr. Justice Matthew M. Levy, called it 'organic consolidation--a joinder for all purposes of the litigation * * *.' Vidal v. Sheffield Farms Co., 208 Misc. 438, 141 N.Y.S.2d 82, 85. Here the issues are not precisely the same and do not arise out of the same occurrence.
Nor can a joint trial be ordered pursuant to Sec. 96-a, C.P.A., for it provides that 'The court may order that two or more actions * * * growing out of the same set of facts be tried or heard together, without consolidation,...
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Denzel v. Cook County
...Blank (1958), 6 A.D.2d 842, 176 N.Y.S.2d 573 (2 months), cited in Schwartz, 63 Ill.App.2d 148, 156, 211 N.E.2d 122; Gamble v. Fraleigh (1955), 1 Misc.2d 347, 146 N.Y.S.2d 146 (9 Defendants have emphasized as the central consideration in this appeal the 21 month interval between the accident......
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Shacter v. Richter
...defendants rely on certain New York authorities which are on all fours with the facts in this case. These cases are Gamble v. Fraleigh, 1 Misc.2d 347, 146 N.Y.S.2d 146; Abbatepaolo v. Blumberg, 7 A.D.2d 847, 182 N.Y.S.2d 83; and Pride v. Perras, 6 A.D.2d 842, 176 N.Y.S.2d 573. In the latter......
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Carr v. Higdon
...when separate accidents injure the same plaintiff. Pride v. Perras, 6 A.2d 842, 176 N.Y.S.2d 573 (1958) and Gamble v. Fraleigh, 1 Misc.2d 347, 146 N.Y.S.2d 146 (Sup.Ct.Sp.Term.1955). Although generalizations as to the question are difficult, the cases considering the application of joinder ......
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Schwartz v. Swan
...The same issue has been considered by the appellate courts of New York, Michigan and Minnesota. In the case of Gamble v. Fraleigh, 1 Misc.2d 347, 146 N.Y.S.2d 146 (1955) the Supreme Court of New York denied a motion to consolidate two causes of action, involving the same plaintiff, seeking ......