Byers v. Estate of Tudge , 117 A.D.2d 912 ( 1986 )

—Yesawich, Jr., J.

Appeal from an order of the Supreme Court at Special Term (Connor, J.), entered June 7, 1985 in Columbia County, which granted plaintiffs motion to consolidate actions Nos. 1 and 2 for trial.

A horse owned by plaintiff and lodged with defendant Sidney Tudge (hereinafter defendant) allegedly fell into a well on defendant’s property and drowned. Monarch Insurance Company of Ohio paid plaintiff $5,000 for her loss and then, as plaintiff’s subrogor, commenced suit (action No. 2) against defendant in that amount. Thereafter, plaintiff, believing her damages from the horse’s death amounted to $150,000, also instituted suit (action No. 1). Defendant then moved to dismiss action No. 1 on the ground that plaintiff had another action pending between the same parties and charged plaintiff with improperly splitting a single cause of action. Special Term disagreed and granted plaintiffs motion to have the two actions consolidated; defendant appeals.

We affirm. Plaintiff’s interest and that of the insurer, though arising out of the same transaction, are distinct and cognizable (see, Skinner v Klein, 24 AD2d 433). With respect to defendant’s concern that defending against two actions will be unduly cumbersome, that is a circumstance to be resolved by the trial court in the course of the litigation (see, Chemprene, Inc. v X-Tyal Intl. Corp., 55 NY2d 900).

Order affirmed, with costs. Main, J. P., Weiss, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.