App. Div.] First Department, July, 1911. members of the board of assessors who made the determinations sought to be reviewed are no longer in office; but that would be no answer to an application for a further return. (Code Civ. Proc. § 2136.) It is also contended on the part of the respondents that authority for the order is found in the provisions of section 2139 of the Code of Civil Procedure. That section, however, does not authorize the court to make or to amend a return. It merely provides for the use of affidavits on the hearing in certain instances, but clearly not in a case like the one above. It follows that the order, in so far as it purports to correct or amend the return of the board of assessors with respect to matters not covered by the stipulation of the attorneys for the respective parties, should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. INGRAHAM, P. J., CLARKE, SCOTT and MILLER, JJ., concurred. Order reversed to the extent stated in opinion, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order to be settled on notice. THE PEOPLE OF THE STATE OF NEW YORK ex rel. JAMES G. COLLINS, Respondent, v. JOHN F. АHEARN, as President of the Borough of Manhattan, City of New York, Defendant, Impleaded with GEORGE F. SCANNELL, Appellant. THE PEOPLE OF THE STATE OF NEW YORK ex rel. JAMES G. COLLINS, Respondent, v. GEORGE MCANENY, as President of the Borough of Manhattan, City of New York, Appellant. Mandamus First Department, July 7, 1911. party — substituting present incumbent of office — practice - consolidation of special proceedings. It is proper in a mandamus proceeding brought against one of the borough presidents of New York city to compel the reinstatement of the relator in the city's employ, to substitute the present borough president as defendant in place of the president who held office when the proceeding was instituted. First Department, July, 1911. [Vol. 146. The statutory authority to consolidate actions was given primarily for the benefit of the defendant. The Supreme Court has no authority to consolidate two special proceedings which are based on different facts and are, in part, against different respondents. So it is improper to consolidate two mandamus proceedings brought against the president of the borough of Manhattan to compel the reinstatement of the relator in the employ of the city where the first proceeding was against a former president of the borough and was based on facts then existing and the second proceeding was based on the theory that the relator lawfully held office when the present borough president assumed office and that he unlawfully removed relator. SEPARATE APPEALS by the defendants George F. Scannell and George McAneny, as president, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of April, 1911, substituting George McAneny, as president of the borough of Manhattan, in the place and stead of and as successor to former borough presidents John F. Ahearn and John Cloughen in the first above-entitled proceeding and continuing said proceeding against said McAneny, as president of the borough of Manhattan and consolidating said proceeding with the proceeding secondly entitled. Terence Farley [Louis H. Hahlo with him on the brief], for the appellant McAneny, as borough president. George Gordon Battle [Roger B. Wood with him on the brief], for the appellant Scannell. Herbert C. Smyth [John W. Browne and Frederic C. Sco field with him on the brief], for the respondent. LAUGHLIN, J.: The first proceeding is against Ahearn, as president of the borough of Manhattan, for the reinstatement of the relator to the position of head of the bureau of highways, and the appellant Scannell, who was appointed in his place, was joined as a respondent. Pending the proceeding Ahearn was removed from office and the proceeding abated. (People ex rel. Collins v. Ahearn, No. 1, 137 App. Div. 260, 265.) On the 21st day of December, 1909, the relator obtained an order continuing the First Department, July, 1911. App. Div.] proceeding against one Cloughen, Ahearn's successor in office, and thereafter obtained a peremptory writ of mandamus based on proceedings had after the removal of Ahearn and before the proceeding was continued against his successor, for the restoration of the relator and for the payment of his salary. The appellant McAneny succeeded Cloughen as borough president on January 1, 1910, and as such official made a return to said peremptory writ of mandamus which had been served on him, although he had not been substituted as a party to the proceeding. On the 9th day of December, 1910, the relator instituted the second proceeding, which is against McAneny, as borough president, for his reinstatement as superintendent or head of the bureau of highways, based, however, not upon his removal by Ahearn, but upon the theory that he lawfully held the office at the time McAneny became borough president, and that it was the latter's duty to obey said peremptory writ of mandamus; that he was unlawfully removed and ejected from his office by McAneny on the 22d day of April, 1910, without charges, or an opportunity to explain any charges against him, and also that on or about the 14th day of February, 1910, McAneny, as borough president, assumed without authority and in bad faith to abolish the office held by the relator. On the appeal in the proceeding instituted against Ahearn this court held that the proceedings therein subsequent to the removal of Ahearn were a nullity (People ex rel. Collins v. Ahearn, supra); and thereafter and on the 13th day of March, 1911, an order was duly made by the Special Term vacating and setting aside the final order in said proceeding which had been made subsequent to the removal of Ahearn. We are of opinion that the court properly granted the order substituting McAneny, as borough president, in the proceeding originally instituted against Ahearn, as borough president, and directing that the proceeding be continued against McAneny in his capacity as such borough president. (People ex rel. La Chicotte v. Best, 187 N. Y. 1.) We think, however, that the consolidation of the two proceedings was not authorized. There appears to be no express statutory authority for consolidating special proceedings. It is difficult to conceive a case in which it would be practical to consolidate special proceedings. It is First Department, July, 1911. [Vol. 146. manifest that there would be no necessity for consolidating two proceedings instituted by the same party against the same party or parties on the same facts and for identically the same relief. In such case one of the proceedings would be entirely unnecessary and might be discontinued; and if two or more proceedings are instituted by and against the same parties on different facts and for different relief, there would seem to be no propriety in consolidating them. The theory of the provisions of section 817 of the Code of Civil Procedure with respect to the consolidation of actions is not that it is deemed necessary to make provision for the consolidation of two or more actions based on the same cause of action, but for two or more actions by the same plaintiff against the same defendant or defendants on different causes of action. (Miller v. Baillard, 124 App. Div. 555; Mayor v. Coffin, 90 N. Y. 312, 313.) The statutory authority to consolidate actions was given primarily for the benefit of the defendant and not for the benefit of the plaintiff, who might have originally joined his causes of action in one. Without expressing a decided opinion with respect to whether or not the court may have implied authority to consolidate special proceedings, or as to whether or not a state of facts or circumstances may arise which would warrant that course, we are decidedly of opinion that there was no authority for the consolidation of those proceedings, which are based on different facts and are against different respondents in part at least. It follows that the order should be modified by striking out the provision thereof granting the motion for the consolidation of the proceedings and inserting in lieu thereof a provision denying such motion, and as thus modified affirmed, with costs, for, although the appeal was from the entire order, this was the only point presented for decision. INGRAHAM, P. J., CLARKE, SCOTT and MILLER, JJ., concurred. Order modified as directed in opinion and as modified affirmed, with costs. Order to be settled on notice. First Department, July, 1911. App. Div.] PAULINE SCHACHTER, an Infant, by NATHAN SCHACHTER, Her Guardian ad Litem, Respondent, v. INTERBOROUGH RAPID TRANSIT COMPANY, Appellant. First Department, July 7, 1911. Railroad - negligence-injury caused by short circuit on elevated railroad evidence responsibility of independent contractor In an action against an elevated railroad company to recover damages for personal injuries received by one who while employed in an adjoining building was injured in an effort to escape therefrom during a panic caused by explosions, resulting from a short circuit caused when the cable on a derrick used in reconstructing the elevated structure came in contact with a passing train, it is error to exclude evidence tending to show that the short circuit was caused by the employees of one under contract with the defendant to lower the elevated railroad, or to exclude the contract itself. This is true, although the reconstruction of the elevated railroad was conducted under the supervision of engineers employed by the defendant, for, had the evidence been admitted, the jury might have found that the only negligence was that of the contractor. It is error to charge in substance that the happening of such accident raises a presumption of negligence on the part of the defendant, for, even were the rule of res ipsa loquitur applicable (as to which quære), it would not aid in fixing the responsibility for the short circuit upon the defendant. The rule of res ipsa loquitur does not raise a presumption of negligence as a matter of law, but merely a prima facie case upon which the jury may, if no evidence be offered on the part of the defendant, infer negligence. APPEAL by the defendant, the Interborough Rapid Transit Company, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 7th day of February, 1911, affirming a judgment of the City Court of the city of New York in favor of the plaintiff, entered on the 28th day of June, 1910, upon the verdict of a jury for $200, and also affirming an order entered on the 22d day of August, 1910, denying the defendant's motion for a new trial made upon the minutes. |