Porter v. Kingsbury

The plea of. another action pending, was an allegation that such other action was pending at the time when the action was commenced in which the plea was put in. So distinctly did the plea have reference to the time of the commencement of the action in which it was pleaded, that it was not nece'ssary to aver, that the former action was still pending at the time when the plea was pleaded, although it was customary to aver this. (1 Chitt. Pl., 454, note 2.) This matter was discussed at some length in Commonwealth v. Churchill (5 Mass., 174), where an old case is cited at length from the year books. And in the Massachusetts case it was held that where a defendant pleaded the pendency of a former action, and there was a replication that since the plea pleaded the plaintiff in the former action had become nonsuit, the replication was bad. The court say that it must appear that the first writ was pending when the second was purchased.

Now when this present action was commenced the former action had been terminated by a judgment for the defendant upon the demurrer. This was a final judgment, and the action was no longer pending. "When, therefore, this present action was commenced there was no other pending for the same cause.

It is true that after this action had been commenced the plaintiff appealed to the Court of Appeals from the judgment in the former action. And it may be asked, what was the remedy of the defendant ? It seems to me that he should have applied for a stay of proceedings in this action during the appeal in the former. In that case, if the former judgment should be affirmed (as we were informed on the argument that it had been), the present action could have proceeded. If it had been reversed, the court could have perpetually stayed proceedings in this present action.

But now the defendant has pleaded in bar the pendency of the former action, which was not pending when this action was commenced, and which (as above stated) is now finally disposed of, and the plaintiff is defeated both in this and in the former action, without having been heard on the merits.

The judgment should be reversed and a new trial granted, costs to abide event.

(dissenting):

If the Court of Appeals should sustain the decision of the Special Term in the former suit pleaded by the'defendants in this action, the plaintiff would recover upon the same instrument now sued upon and the same amount now claimed in this action. There is, therefore, no doubt of the identity of the causes of action in the two cases. If they were pending at the same time the first action may be alleged as a reason why the second action should not be sustained. (Code, §§ 144, 147.) Until the former action is finally disposed of the second one is improperly brought. In tbis instance the second action was brought after the General Term had sustained the defendants’ demurrer to the complaint in the first action on the ground that the complaint did not state a cause of action. If the case had stopped there no doubt the plaintiff could properly have brought this new action. But after bringing this new action the plaintiff appeals from the decision of the General Term to the Court of Appeals. By such conduct he is so situated that he may recover two judgments upon one cause of action. To prevent such a result the defendants necessarily interpose the former suit still pending by virtue of the plaintiff’s appeal to the Court of Appeals. It is not deemed of importance that the appeal was taken in the first action after the second action was begun. The alleged defense existed when the answer was put in, and was properly included therein. The plaintiff, by his own act, had rendered it not only proper but necessary that such defense should be interposed. The plaintiff should have continued the pursuit of his rights under the first action or, abandoning that, brought the present action. He had an election which course to pursue, but the law would not and ought not to tolerate both. If the second action can be permitted at all, the proceedings in it should have been stayed until the Court of Appeals had finally disposed of the former action. Neither party asked this upon the trial. Both, apparently, sought a trial of the issue. As the plaintiff did not ask that the action should stand over, nor the defendant ask for a stay until the decision of the Court of Appeals, nothing remained for the court but to try the issue. On the facts found (and they are conceded) it is difficult to see how the learned judge could find otherwise than he did. It is evident the same relief sought in this action might be afforded by the Court of *38Appeals in the former action, and that until the termination of the former action adversely to the plaintiff\ he ought not to be permitted to pursue to judgment another and different, remedy. These views are sustained, in my judgment, by the following cases: Fenno v. Dickinson (4 Den., 84), Nones v. Homer (12 Abb., 247), Traver v. Nichols (7 Wend., 434), Groshon v. Lyon (16 Barb., 461), Robinson v. Plimpton (25 N. Y., 484), Johnson v. Yeomans (8 How., 140).

It is believed the decision at Special Term is correct and the judgment should, therefore, be affirmed with costs.

Judgment reversed, new trial granted, costs to abide event.