Gillin v. Canary.

City, 81 Hun, 353; S. C., 63 St. R. 118; 30 Supp. 954; Boecha v. Brown, 9 App. Div. 369.

The proceedings of a court of limited jurisdiction must be within the powers granted to it by law, and if it transcends the jurisdiction conferred its judgment will be void. 12 Am. & Eng. Enc. of L. 268, 269, 312; Cow. Tr. § 650; Hill v. Fowler, 6 Hill, 630; Bellinger v. Ford, 14 Barb. 250; Van Etten v. Van Etten, 69 Hun, 499; Ramsey v. Robinson, 86 Id. 511. Jurisdiction of the person and subject matter is not alone sufficient; power to render the particular judgment is also essential, for no court can give a judgment valid for any purpose which is not authorized by law. People v. Liscomb, 60 N. Y. 559; Ex parte Lange, 18 Wall. 163; Mattison v. Bancus, Lalor's Supp. to Hill. & Den. R. 321. Transcending jurisdiction in this instance is as fatal to the judgment as if the court rendering it had been without jurisdiction of the subject matter, which as applied here means " the object, the thing in dispute" (Hunt v. Hunt, 72 N. Y. at p. 228); or "the debt (Borst v. Corey, 15 N. Y. at p. 509), which by the consolidation was $4,000, exclusive of interest. See also 2 Waitt's Law & Pr. in Justices' Courts, p. 14 et seq.

If the effect of the consolidation allowed here was to require a judgment of $4,000-one which the court could not render-then, in the language of SEDGWICK, J., in Alexander v. Bennett (38 super. at p. 505), “ The exercise of the power is suicide of jurisdiction, for it puts an action in a position where the court will have no power to adjudicate in it." Judge SEDGWICK'S view was sustained on appeal. 60 N. Y. 204. If notwithstanding the consolidation the court below had awarded judgment within the statutory limit, a different question would have been presented.

The fact that the consolidation was had on the application of the defendant and that he gained a benefit from it, however much it may justify unfavorable comment, does not estop him from raising the question of jurisdic

Gillin v. Canary.

tion; for whenever there is a want of authority to hear and determine the subject matter of the controversy or to render the judgment, an adjudication upon the merits is a nullity, and does not estop even an assenting party, and a defeated party may raise the question for the first time upon appeal. Matter of Walker, 136 N. Y. 20; Wilmore v. Flack, 96 Id. 512; Kamp v. Kamp, 59 Id. 212, 216; Davidsburgh v. Ins. Co., 90 Id. 526; Craig v. Town of Andes, 93 Id. 405; McMahon v. Rauhr, 47 Id. 67; Cunard Co. v. Voorhis, 104 Id. 525; Robinson v. Oceanic S. N. Co., 112 Id. 315; Bartlett v. Mudgett, 75 Hun, at p. 297. Even confessing a judgment does not cure the want of jurisdiction in the court. Coffin v. Tracy, 3 Cai. 129.

The only method of preserving the rights of all the parties is to decide that the order for consolidation and all the proceedings founded upon it are void and of no effect, leaving the two actions to proceed as if no such order had been made.

Opinion by MCADAM, J. DALY, P. J., and BISCHOFF, JR., J., concur.

Judgment accordingly.

Joseph C. Rosenbaum, for the defendant, appellant.

W. F. Severance, (Oppenheim & Severance, attorneys), for the plaintiff, respondent.

Note on Consolidation of Actions,

NOTE ON CONSOLIDATION OF ACTIONS.

66

Statutes.] Section 817 of the Code of Civil Procedure provides : '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."

By section 818 it is provided 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.

It is further provided, by section 819, that where separate actions are commenced against two or more joint and several debtors, in the same court, and for the same causes of action, the plaintiff may, in any stage of the proceedings, consolidate them into one action.

By section 3347, subdivision 6, all three of the foregoing sections are made applicable to all courts of record.

Actions in different courts.] The city court of New York may remove to itself and consolidate with an action pending in that court, an action pending in one of the district courts in the city of New York. McKay v. Reed, 12 Abb. N. C. 58n.

The same rule applied to the Court of Common Pleas before it was abolished. Sire v. Kneuper, 22 Abb. N. C. 62.

Also to the superior court of the city of New York in removing a case from the City Court of New York. Carter v. Sulley, 28 Abb. N. C. 130; s. C., 19 Supp. 244.

As to removal to supreme court from another court, see Salomon v. Belden, 12 Abb. N. C. 58.

Different causes, or parties; amount.] To justify a consolidation not only must the causes of action be such as might be joined, but the two actions must be brought against the same defendants. Isear v. Daynes, 1 App. Div.

557

In that case an action had been begun in a district court in the city of New York, on an insurance policy, against two defendants. Another action was commenced in the supreme court on the same policy of insurance, but naming fifty defendants, including the two in the district. court action. It. was held under such circumstances, the defendants being different, that the court had no power to bring the district court action to the supreme court and

Note on Consolidation of Actions.

consolidate two actions. The appellate division granted a stay, however, of the district court action, pending the final determination of the action in the supreme court.

See also Gloucester Iron Works v. Board of Water Commissioners (10 Supp. 168), where a motion for consolidation was denied, because of different defendants in the two actions; also Mayor v. Mayor, 11 Abb. N. C. 367.

The primary test on such a motion is whether or not the causes of action set up in the two suits sought to be consolidated are such as might be joined under Code Civ. Pro. 484, in one complaint. See Rosenberg v. Staten Island R. R. Co., 14 Supp. 476; s. c., 38 St. R. 106, where an action for a personal injury and one for injury to property, both resulting simultaneously from the same accident, were consolidated.

See also De Wolfe v. Abraham (3 N. Y. Ann. Cas. 301), and Note on Joinder of Causes of Action Growing out of the Same Transaction, Id. 304; Farmers' & Manufacturers' Bank v. Tracy, 19 Wend. 23.

In Bush v. Abrahams (2 Supp. 391), the defendant moved to consolidate five actions in the City Court of New York each of which was brought to recover less than $2,000, but the amount claimed in all amounted to $5,500. In his moving papers the defendant stipulated to waive the question of jurisdiction and not to take advantage of the point that the consolidated action would be for a sum greater than the jurisdiction of the court warranted. The motion was denied at special term and the order was reversed by the general term of the city court and the proceedings remitted back to the special term for further action, the special term originally having denied the motion on the ground of want of power to make the order.

Upon appeal to the general term of the court of common pleas the appeal was dismissed on the ground that the order was not appealable and a motion for a reargument was subsequently denied. 4 Supp. 833. That case is distinguishable from the one in the text only in the fact of the stipulation by the defendant.

Either equitable or legal actions may be consolidated. Wooster v. Case, 12 Supp. 769; S. C., 34 St. R. 577.

In the case last cited two actions were begun to foreclose mortgages on the same premises, but the descriptions in the two mortgages were somewhat different and the court for that reason refused to consolidate them but declared that in a proper case it could be done in an equitable action.

Rent.] In Sire v. Kneuper (3 Supp. 533), both actions

Note on Consolidation of Actions.

were for rent under the same instrument; one action was brought in a district court and the other in the court of common pleas, and the latter court ordered them consolidated.

In Carter v. Sulley, (28 Abb. N. C. 130; s. C., 19 Supp. 244), an action was begun for rent, in the Superior Court of New York City against a surety under a lease, and subsequently another action was begun in the City Court for rent for the following month, against the same defendant. The Superior Court removed the City Court action to itself and consolidated the two actions.

Mortgage foreclosure.] Actions to foreclose mortgages on separate lots although the defendants are identical cannot be consolidated. Selkirk v. Wood, 9 Civ. Pro. R. 141; Bech v. Ruggles, 6 Abb. N. C. 69; Kipp v. Delamater, 58 How. Pr. 183.

Actions to foreclose mortgages upon separate parcels of land cannot be joined under Code Civ. Pro. § 484, and the court cannot consolidate them under section 817. Selkirk v. Wood, 9 Civ. Pro. R. 141.

But it seems that if both mortgages are on the same land, the parties are identical and the defenses are the same, the actions may be consolidated. Id.

Partition.] Actions for partition of separate parcels of land in different counties cannot be consolidated. Mayor v. Caffin, 90 N. Y. 312.

Libel. Sixty-two actions for libel, one brought in each county of the State against the same defendant were ordered consolidated in Percy v. Seward, 6 Abb. Pr. 326.

But where two actions were brought for the same libel, one against the editor and the other against the publisher of a newspaper, the court refused to consolidate them. Cooper v. Weed, 2 How. Pr. 40.

Penalties.] In Cook v. Metropolitan Bank (5 Sandf. 665), the court refused to consolidate several actions brought to recover penalties, but ordered all except one to be stayed.

Insurance.] In Camman v. N. Y. Insurance Co. (Col. & Cai. 188), which was decided in 1803, the court refused to consolidate eleven actions on policies of insurance on one cargo, the defendant being the same in each, and one of the plaintiffs being the same in all of the actions, but associated with him in each policy were other persons who had interests in the separate portions of the cargo insured.

Conditions.] In case the consolidation may prejudice