Opinion
March 1, 1960
Order granting respondent's motion to consolidate appellant's Municipal Court action to recover the balance due for professional services with respondent's Supreme Court action to recover damages for malpractice unanimously modified, on the law and in the exercise of discretion, to condition the consolidation on the payment into court by the respondent of the sum of $350 to secure the payment of the alleged fees due for professional services together with interest and costs thereon, and the order is otherwise affirmed, without costs to either party. Economy and the interests of justice will be served by consolidation of the actions (Civ. Prac. Act, § 97; Geller v. Ticktin, 6 Misc.2d 16 [LEVY, M.M., J.]). Any incentive to frustrate or delay the payment of fees properly due will be eliminated by requiring the patient to make the deposit into court. (See, however, Murray v. Brown, 3 A.D.2d 989; Perlman v. Perlman, 178 Misc. 223.) Settle order.
Concur — Botein, P.J., Breitel, McNally, Stevens and Bastow, JJ.