The question tendered to us on this appeal is essentially one of Supreme Court practice, since at bottom it involves the efficacy of attempts made by plaintiffs to escape the effect of an outstanding Supreme Court order of consolidation.
The four plaintiffs above named brought, in 1939, three separate personal injury actions (Marion Mink and Herman Mink, her husband, suing together) against the owners and drivers of two automobiles which had been in collision and in one of which automobiles three of the plaintiffs here (Marion Mink, Helen Lefkowitz and Abraham Altschuler) had been passengers. Two of those actions were brought in Bronx County and one in New York County. Those three actions were duly consolidated, by order of the Supreme Court, with two other actions, one brought in Sullivan County, the other in Kings County, in each of which other two actions the driver of one of the cars had sued the driver of the other car. That order of consolidation, making one suit (with venue laid in Sullivan County) out of those erstwhile separate actions, was never reversed and still stands. When the consolidated action came on for trial, however, the above-named plaintiffs Mink, Lefkowitz and Altschuler attempted to remove themselves and their claims from the consolidated cause by refusing to take any part in that trial. Everything indicates that their failure to appear was deliberate, not inadvertent. They did not ask for, or get, the court's permission to withdraw their complaints. No counsel appeared for them and no proof was offered for them. No other parties appeared at that trial of the consolidated cause except Mr. and Mrs. Keim, owner and occupants of one of the colliding cars, who made proof at that trial of their respective causes of action for property damage, personal injuries, loss of services, et cetera. The court awarded damages to Mr. and Mrs. Keim and entered a judgment in their favor for those damages against Orel, owner of the other car, which judgment, entitled in the consolidated action, also dismissed "on the merits" the causes of action in favor of the same four persons who are the plaintiffs *Page 306 in the present action. (Though we do not consider it a principal ground for affirmance here, it is of some importance that the determination in favor of the Keims, after proof taken, was necessarily based on holdings that the driver of the Orel car was negligent and that the driver of the Keim car was free from negligence.) Later Mr. and Mrs. Mink and Lefkowitz and Altschuler moved to have the words "on the merits" stricken from that judgment. That effort did not succeed (see Keim v. Orel,263 App. Div. 779) so that there still stands of record and of full force against them a judgment of dismissal intended to be and stated to be on the merits. Despite the continuing vitality of that judgment the four plaintiffs above named now insist on their right to bring a new action, this time in New York County, against the same defendants on the same theory and for the same relief demanded in their prior actions. On motion of defendants Keim, the Appellate Division has ordered this new action dismissed, holding (as did both lower courts on the previous motion in the consolidation cause to excise the words "on the merits" from the judgment) that under all the circumstances, the judgment in the consolidated action was, in effect as in terms, a judgment on the merits. We think that determination was not erroneous.
It is true that in most cases of dismissal of a complaint before the close of a plaintiff's proof, the judgment of dismissal may not properly be labeled "on the merits" and does not operate to prevent the bringing of another action even when that label is deliberately attached to the judgment by the court which renders it. (Clark v. Scovill, 198 N.Y. 279.) Ordinarily the rule is that a dismissal because of plaintiff's failure to attend at the trial or to make proof thereat is not a sufficient basis for a judgment of dismissal on the merits. (Honsinger v. Union Carriage Gear Co., 175 N.Y. 229.) The 1920 amendment to what is now section 482 of the Civil Practice Act was not, it seems, intended to change that rule. But the cases recognize that in addition to voluntary non-suits (on terms and with the court's permission) and inadvertent failures to answer the calendar, et cetera, there is also such a thing as a deliberate, intentional abandonment of one's cause of action, evidenced by a willful refusal to go on with the case when it is called for trial. (See discussion in Sweeting v. Staten Island Midland *Page 307 Ry Co., 176 App. Div. 494, and People ex rel Rogall v.Jacoby, 264 N.Y. 485.) Section 482 of the Civil Practice Act does not require that such a dismissal be without prejudice to a new action. The Appellate Division has held in the present suit that refusal of these plaintiffs to go on with their proof in the consolidated cause was no less than a willful abandonment of their claims. (See Civ. Prac. Act, § 494-a.) We think that description of their maneuvers was justified, if indeed any other interpretation is possible. When their causes of action were consolidated with others by an order which still stands, plaintiffs could not deprive that consolidation order of all effect by standing silent at the trial or by remaining away from it and permitting a dismissal on the merits, and then commence, without anyone's leave, a new action for the same relief. Such an unscrambling of the eggs is not among the privileges of any litigant. Causes of action, consolidated with other actions for all purposes by a valid order, cannot be thus "unconsolidated." A consolidated action is one action for all purposes (Blake v.Michigan S. N.I.R.R. Co., 17 How. Pr. 228) and unless there be a severance only one judgment can be entered therein. (Kriser v. Rodgers, 195 App. Div. 394.)
The Appellate Divisions of both the First Department (in the present case) and the Third Department (in the consolidated cause, Keim v. Orel, 263 App. Div. 779) have passed on the effect of the attempted withdrawal of these parties from the consolidated cause. Both those courts, deciding what is essentially a question of Supreme Court practice, have ruled that a plaintiff may not thus lift his cause of action out of a consolidated cause and keep it intact for future harassment of a defendant. We should not say that both those courts were wrong as matter of law in their proper endeavors to give teeth to the order of consolidation and judgment of dismissal.
The judgment of the Appellate Division should be affirmed, with costs.
LEHMAN, Ch. J., LEWIS, CONWAY and THACHER, JJ., concur with RIPPEY, J.; DESMOND, J., dissents in opinion in which LOUGHRAN, J., concurs.
Judgment accordingly. *Page 308