Opinion
November, 1926.
Appeal from Supreme Court, Albany County.
Present — Cochrane, P.J., H.T. Kellogg, Van Kirk, Hinman and McCann, JJ. All concur, except H.T. Kellogg, J., dissenting. Order dated September 25, 1926, reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
The claims of plaintiff arise out of transactions connected with the same subject of action. It is proper to join defendants against whom the right to any relief is alleged to exist, and judgment may be given against such one or more of the defendants as may be liable according to their respective liabilities. (Civ. Prac. Act, § 211.) There is but one subject of action, to wit, the alleged fraudulent acts by which plaintiff claims to have been injured. The defendants may have participated in these acts with varying degrees of liability. There is no occasion to sever the action, for the due administration of litigated business in the courts will be served by trying the issues in one action instead of three. (See Sherlock v. Manwaren, 208 App. Div. 538, 541.)
See Civ. Prac. Act, § 258, subd. 9. — [REP.
Rule 5 of the Rules of the Appellate Division for the Third Department is hereby amended to read as follows:
RULE 5.
Appeals in criminal cases, brought after making up the calendar, or too late to be placed thereon, may be put upon the calendar at any time and brought to a hearing as preferred cases upon a notice of five days to the adverse party, as provided by section 535 of the Criminal Code. A note of issue, with a statement of the day on which the cause is noticed to be heard, must be filed with the clerk at least three days before such date. The clerk shall place such causes on the calendar for the day for which they are so noticed, or upon which the cause shall be ordered by the court, or stipulated by the parties to be heard.
Amd. by Laws of 1926, chap. 464. — [REP.