Two plaintiffs, each claiming brokerage commissions resulting from the leasing of premises owned by the same person, separately commenced action against the owner in different counties. The first action was commenced in New York County, the second in Westchester County. Respondent owner moved for an order consolidating the two actions and fixing the place of trial in Westchester County. The motion was granted, and from the order entered thereon plaintiff in the New York County action appeals. Order modified on the law and the facts by striking out the first ordering paragraph and in its place inserting the words, "Ordered that the motion to consolidate the above entitled actions be and the same is hereby granted, plaintiff Cross Brown Company to have the right to open and close, and trial to be held in New York County; and it is further". As so modified, the order is affirmed, without costs. Both actions arose out of the same transaction and should be consolidated. (Civ. Prac. Act, § 96.) Appellant, having commenced its action in New York County prior to the commencement of the action in Westchester County, and respondent having failed to prove that the convenience of witnesses would be served by a trial in Westchester County, the consolidated causes should be tried in New York County. (Cf. Funk v. Nelson, 264 App. Div. 876.) Nolan, P.J., Carswell, Adel, Sneed and Wenzel, JJ., concur.