Anderson v. Nolan , 2 A.D.2d 629 ( 1956 )

This is an appeal from an order removing an action from the County Court of Sullivan County and consolidating the same with an action pending in the Supreme Court. Action No. 1 against the defendant Nolan is for the purpose of reforming a conditional sales agreement for the purchase of a home freezer on the ground of mutual mistake or fraud on the part of the vendor. The plaintiffs in that action allege that Nolan represented to them that the sales agreement would contain a provision that if within a period of six months for any reason they desired to return the machine its return would be accepted and the contract and note cancelled. Action No. 2 is by the First National Bank of Woodridge against the buyers on the note which had been discounted by Nolan with the bank, but Nolan is not made a party to this action. The buyers deny that the bank is a holder in due course and without notice. It may well be that the bank acquired the note in the regular course of business and without notice of the defect claimed, and if so the court before whom the consolidated action is presented can readily grant judgment so far as the bank is concerned. In view of the issues involved we think the discretion of the Special Term in consolidating the two actions should be sustained. Order unanimously affirmed, with $10 costs. Present — Foster, P. J., Bergan, Coon, Halpern and Zeller, JJ.