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FELIX PIOTROWSKI ET AL. v. TOWN EVANS ET AL. (06/04/68)
SUPREME COURT OF NEW YORK, ERIE COUNTY
1968.NY.41934 <http://www.versuslaw.com>; 290 N.Y.S.2d 786; 56 Misc. 2d 1029
June 4, 1968
FELIX PIOTROWSKI ET AL., PLAINTIFFS,v.TOWN OF EVANS ET AL., DEFENDANTS. (ACTION NO. 1.); ANGELO C. BARONE, AN INFANT, BY HIS FATHER AND NATURAL GUARDIAN, CHRISTIE BARONE, ET AL., PLAINTIFFS, V. NANCY L. PIOTROWKSI ET AL., DEFENDANTS. (ACTION NO. 2.)
Nicholas Konst for Felix Piotrowski, plaintiff in Action No. 1 and defendant in Action No. 2.
Brown, Kelly, Turner, Hassett & Leach (Lee S. Michaels of counsel), for Town of Evans, defendant in both actions.
Pottle, O'Shea, Adamson & Reynolds (C. De Forest Cummings, Jr., of counsel), for Daniel A. Pignato, defendant in Action No. 1.
Adel, Collins & Adel for Angelo C. Barone and another, plaintiffs in Action No. 2.
Miller, Bouvier, O'Connor & Ulsh for Nancy L. Piotrowski and another, defendants in Action No. 2.
Michael Catalano, J.
The above-mentioned cases were jointly tried (not consolidated) pursuant to an order of this court dated May 18, 1967, before the undersigned, resulting in the following verdicts:
1. For plaintiff Adele Piotrowski ("Adele"), for $342 against defendant Daniel A. Pignato ("Daniel"), a New Jersey resident.
2. Against plaintiff Nancy Louise Piotrowski ("Nancy"), for "Daniel", of no cause of action.
3. For plaintiff Diane Piotrowski ("Diane") for $100 against "Daniel".
4. For plaintiff Felix Piotrowski ("Felix") for $437.77 against "Daniel".
5. Against plaintiff Angelo C. Barone ("Angelo"), for "Nancy", "Felix", and the defendant Town of Evans ("Town"), of no cause of action.
6. Against plaintiff Christie Barone ("Christie"), for "Nancy", "Felix" and the Town, of no cause of action.
"Daniel" moves for an order disallowing costs against him; the town moves for an order amending a judgment filed April 8, 1968, to include $150 costs for the town; "Christie" and "Angelo" move for an order vacating the said judgment of April 8, 1968, thereby denying any costs to "Felix" and "Nancy".
"When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay." (CPLR 602, subd. [a].)
"In consolidated actions, however, only one judgment and a single bill of costs are entered, whereas in joint trials, separate verdicts and judgments are entered, each judgment may be appealed, and costs are taxed as in the initial causes and courts." (Weinstein-Korn-Miller Manual, CPLR p. 6-1.)
"If the joinder of the claims by the plaintiffs would not have prevented them from commencing the action in the lower court, aggregation should not be permitted." (8 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 8102.07.)
Under subdivision 5 of section 1474 of the Civil Practice Act, where the recovery of each plaintiff was for less than $250 they were not entitled to costs, if the action could have been brought in the City Court of Buffalo instead of the Supreme Court, Erie County. (Scioldoni v. Republic Light, Heat & Power Co., 224 App. Div. 566 [4th Dept.], affd. 251 N. Y. 574. See, also Bell Plumbing Co. v. Ostroff, 17 A.D.2d 906 [4th Dept.].)
The City Court of Buffalo has jurisdiction over the subject matter when service has been obtained on the Secretary of State pursuant to section 253 of the Vehicle and Traffic Law, within the territorial limitations of the County of Erie or any adjoining county (see N. Y. Const., art. VI, § 1, subd. c; UCCA, §§ 404, 406; L. 1964, ch. 497; Recktenwalt v. Donovan, 161 Misc. 109, 110). Norris v. Arone (51 Misc. 2d 138) did not consider this type of service as it might apply to the City Court of White ...