Van Riper v. Rodriguez

Appeal by defendant from an order of the County Court, Nassau County, denying his motion to dismiss the complaint on three grounds: (a) under rule 106 of the Rules of Civil Practice that the complaint is insufficient on its face; (h) under subdivision 4 of rule 107 that there is another action pending between the same parties for the same cause; and (c) under subdivision 5 of rule 107 that there is an existing final judgment determining on the merits the same cause between the parties. Order reversed on the law, with $10 costs *1034and disbursements, and the motion granted, without costs, with leave to move to vacate the order in the other action and to procure the entry of an order conforming to the decision of the court on the prior motion, so as to enable the plaintiff to serve an amended complaint on such terms, if any, as may be deemed just. The undisputed facts establish that there is another action pending between the same parties for, the same cause. The service of the second summons constituted the institution of a new and independent cause of action in which the second or new complaint was served. Lewis, P. J., Carswell,. Adel, Aldrich and Nolan, JJ., concur.