SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
May 12, 1969
WALTER A. BARON, RESPONDENT,
ELDRIDGE FLEISCHER, DEFENDANT. (ACTION NO. 1.); ROSALIE FLEISCHER ET AL., APPELLANTS, V. WALTER A. BARON, DEFENDANT. (ACTION NO. 2.)
Appeal by plaintiffs Fleischer in Action No. 2 (Nassau County) from an order of the Supreme Court, Westchester County, dated December 8, 1968, which granted a motion by plaintiff Baron in Action No. 1 (Westchester County) to consolidate the actions for trial in Westchester County. Plaintiffs Fleischer had cross-moved to consolidate the actions for trial in Nassau County.
Christ, Acting P. J., Brennan, Hopkins, Munder and Martuscello, JJ., concur.
In our opinion, it was an improvident exercise of discretion to fix the venue of the consolidated action in Westchester County. We also feel that plaintiffs Fleischer should be given the right to open and close to the jury.
Order modified, on the law and the facts, by deleting therefrom the second and third decretal paragraphs and by substituting therefor similar paragraphs providing (1) for trial of the consolidated action in Nassau County, (2) for a transfer to the County Clerk of Nassau County of Westchester County Clerk's file No. 13041-1968 for consolidation with Nassau County Clerk's file No. 4711-1968 and (3) that plaintiffs Fleischer shall be accorded the privilege of opening and closing to the jury. As so modified, order affirmed, with $10 costs to plaintiffs Fleischer against plaintiff Baron.
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