Opinion
February 8, 1934.
F.L. Allen, for the plaintiff.
H.N. Wessel, for the defendant.
In this action plaintiff moves to dismiss defendant's counterclaim for rescission of a life insurance policy. Defendant counters with a cross-motion to consolidate the action with its earlier action as plaintiff against the plaintiff herein for rescission of the policy. To grant the main motion would seriously prejudice defendant because the action by the beneficiary, by reason of its preferential character, would be reached first, and in the absence of the rescission counterclaim would probably result in a judgment for the plaintiff. This motion must, therefore, be denied. The cross-motion for consolidation is also denied, but, as the rescission action is the earlier one, it should be tried first, and the law action will be stayed pending the disposition of the equity action. This stay shall be without prejudice to a motion by either party for preference, with the proviso, however, that the equity action shall proceed to trial without undue delay.
Settle order.