In these actions the parties are the same. The plaintiff, however, is suing as an assignee. His two separate claims are derived from different parties and do not grow out of the same transaction. In one action plaintiff is the assignee of the Van Ness Lumber Company and sues to recover for building supplies and money loaned the defendants. The action was commenced in December, 1931, and the cause was noticed for trial for the February, 1932, term. In the second action, which was commenced in February, 1932, plaintiff is suing as assignee of one Grassi for work, labor and services furnished the defendants. This action was noticed for the April term.
It is perfectly clear that if these actions were brought in the names of the assignors, the original owners of the claims, by no process of reasoning could the actions have been consolidated. There are no common facts to litigate. If the existence of the partnership as urged in the dissent were a sufficient “ common fact,” any number of different claims might be combined in one *518action on the theory that one defendant disclaimed partnership liability.
The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
McAvoy and O’Malley, JJ., concur; Finch, P. J., and Martin, J., dissent and vote for affirmance.