Doerfler v. Pottberg — 170 A.D. 578

Majority

p. 578

Isabella R. Doerfler, Appellant, v. Sarah E. Pottberg,Individually and as Executrix of and Trustee under the Last Will and Testament of Louise Doerfler, Deceased, and Others, Defendants, Impleaded with Abraham Doerfler, Respondent.

Second Department,

December 10, 1915.

Headnote

Practice — stay of proceeding — other action pending—when prior action should not be stayed.

The proceedings of a plaintiff in an action for partition should not be stayed pending the determination of a similar action brought by one of the defendants, where it appears that the summons and complaint in the action in which-the defendant is plaintiff was not served until after the plaintiff had begun her action, for when the plaintiff sued there was no other action pending. •

Although a plea of the present plaintiff, as defendant in the second action, of another action pending was properly struck out after the stay of the first action was granted, she is entitled to a rehearing and denial of the motion to strike out after the stay has been vacated.

Appeal by the plaintiff, Isabella R. Doerfler, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 4th day of August, 1915, granting respondent’s motion for a stay of proceedings.

William, H. Griffin, for the appellant.

David Siegelman, for the respondent.

Plaintiff sued for a partition of realty and made A. Doerfler one of the defendants. A. Doerfler brought a similar action and made, among others, plaintiff a defendant. The plaintiff appeals from an order of the Special Term that stays her action until final decree in the latter action; But it appears that the summons and complaint in A. Doerfler’s action were not served upon the plaintiff as a defendant therein.until five days after she began her action, and then with such procedure that the service was not complete until at least ten days after the

p. 579

initiation of service. (Code Civ. Proc. § 443.) As there was then not another action pending against plaintiff when she began her action, the stay should not have been ordered upon the ground of another action pending. (Hart v. Hart, 86 App. Div. 236 ; Warner v. Warner, 6 Misc. Rep. 249 , per Rumsey, J.; 2 Fiero Special Actions, 1591, 1592; Nichols N. Y. Pr. 46.)

In A. Doerfler’s action, the said plaintiff subsequently as a "defendant pleaded inter alia another action pending, and the Special Term on motion struck out that plea. This order is also the subject of an appeal. We think that-the disposition thereof was orderly and proper at the time. For it is the priority, not the mere pendency, that sanctions such a plea in abatement (1 Ency. Pl. & Pr. 752), and when the Special Term came to the consideration of the motion it appeared that the same court had theretofore stayed the action thus pleaded until the final decree in the action then before it. Any other disposition of the motion at that time would have involved the review of an adjudication of a court of co-ordinate jurisdiction. But inasmuch as the first adjudication is now pronounced error, the appellant would be entitled to a rehearing and a denial thereupon of the said order.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with costs.

Carr, Stapleton, Mills and Putnam, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.

Cases cited

Hart v. Hart 86 App. Div. 236 N.Y. App. Div. 1903-07-24 p. 579
Warner v. Warner 6 Misc. Rep. 249 N.Y. Sup. Ct. p. 579