Owens v. Loomis

The single question brought up by the appeal in this case is, whether there was a former suit pending for the same cause of action between the same parties, at the time this action was commenced, and therefore it was claimed that the plea in abatement was established and was a defence.

Formerly such a plea could not be joined with a defence upon the merits. But since the Code of 1848 it has been settled that , such a defence may be joined with one upon the merits. (Sweet v. Tuttle, 4 Kern., 465; Gardner v. Clark, 21 N. Y., 399.)

The effect of the order of the Special Term of October 31, 1876, was to set aside the complaint in that action, and render it necessary for the continuance of the action that an amended complaint be served within ten days; the omission to amend and *608serve left the order effectual so far as it set aside the complaint. Again, the effect of the order was to declare the original summons defective, and to amend it so that it would contain the name of one of the defendants named in this action. It, in effect, declared that he was named as a defendant in the original papers so as to make him a defendant in that action. Though the order in terms declared the summons amended, nevertheless it imposed, a condition upon the plaintiff to serve a copy of the summons, as. amended, upon Mr. Kilbey, within ton days. The omission to do so put the plaintiff in a situation where he cotdd not avail himself of the benefit of the order, allowing a continuance of the action with a corrected summons, and a complaint in accordance with the summons. The omission of the plaintiff to avail himself of the permission within the prescribed time had the effect to render effectual the order setting aside the complaint.

The proofs, therefore, given upon the trial before the referee failed to establish that the plaintiff, at the time of the commencement of this action, had pending against these defendants a suit for the same identical cause of action stated in the complaint in this action, and for which the recovery was had. (Gardner v. Clark, 21 N. Y., 403.)

An order was standing in full force setting aside the plaintiff’s complaint, with costs, and they remained unpaid at the time this action was commenced.

The referee correctly found that “ at the time of the commencement of this action there was no other action pending between the plaintiff and the said defendants herein.” (Porter v. Kingsbury, 13 Hun, 33.)

We must, therefore, affirm the judgment entered upon the referee’s report.

Judgment affii'med.