General Dehydrator Co. v. F. W. Bussing Co.

Headnote

General Dehydrator Co. v. Bussing Co., 176 App. Div. 503 , appeal dismissed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department,

entered February 1?, 191?, which reversed a judgment' in favor of defendant entered upon an order of Special Term granting a motion for judgment in its favor upon the pleadings. This action was commenced to recover the balance of the contract price of a machine manufactured for defendant. A warrant of attachment was issued which was discharged upon defendant’s giving an undertaking. Simultaneously a similar action was commenced in New Jersey upon the same cause of action which resulted in a judgment for plaintiff which was satisfied by payment in full. In the meantime no proceedings had been taken by either party in the New York action, but after paying the judgment in the New Jersey. action defendant made a motion herein to dismiss this action for want of prosecution, which was denied upon condition that plaintiff immediately proceed with the case, whereupon the case was for the first time placed upon the calendar for trial by plaintiff. Defendant then, pursuant to leave of court, interposed a supplemental answer, setting up as “a second, separate and distinct defense ” the recovery and payment of the New Jersey judgment, to which plaintiff replied, admitting the allegations of fact therein. Defendant thereupon moved for judgment on the pleadings, and plaintiff in answer to this motion also moved for judgment thereon in its favor. An order was made granting defendant’s motion, upon which a judgment was rendered in defendant’s favor dismissing plaintiff’s complaint and vacating its warrant of attachment.