Gallagher v. Barth , 268 A.D. 865 ( 1944 )

—Defendant Barth appeals from an order consolidating the trial of two actions, insofar as it awards to respondents Gallagher the right to open first and close last on the trial of the consolidated action. Order modified on the facts by striking therefrom the provision relating to the opening and closing of the parties, and by inserting in place thereof a provision that “ Solomon Barth shall open first and close last on the trial of the consolidated action.” As so modified, the order, insofar as appealed from, is affirmed, with ten dollars costs and disbursements to the appellant. While there is no inflexible governing rule, the factors relating to which party first brought his action and as to which party first had the affirmative on an issue of fact raised by the pleadings require that the right to open first and close last be given to the appellant Barth. That right is a substantial one of which he may not be deprived in the exercise of sound discretion under section 96 of the Civil Practice Act. (Van Devort v. K. & H. Evaporating Company, Inc., 252 App. Div. 8; Kappa Frocks, Inc., v. Alan Fabrics Corp., 263 App. Div. 326.) Close, P. J., Carswell, Johnston, Lewis and Aldrich, JJ., concur.