Majority
p. 925SARATOGA AUTO TOP & BODY CO. v. WHITNEY. (Supreme Court, Appellate Term. February 5, 1909.) Argued before GIFDFRSLEEVF, P. J., and GIFGFRICH and SFABURY, JJ.
Headnote
Abatement and Revival (§ 17[1] )—Another Action Pending—Identity of Issues—J urisdiction.Where defendant moved to dismiss because there was another action pending in another court involving the same issues, while plaintiff declared that such action did not involve the same issues, the court erred in granting the motion without inspecting the pleadings in the other action.
[Ed. Note.—For other cases, see Abatement and Revival, Dec. Dig. § 17.*]
Appeal from Municipal Court, Borough of Manhattan, Fifth District.
Action by the Saratoga Auto Top & Body Company against Howard C. Whitney. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.
Henry A. Blumenthal, for appellant.
Henry F. Rupert, for respondent.
The judgment appealed from must be reversed, because it was entered without evidence of any character being offered, although the complaint stated a cause of action. When the case was called for trial, the defendant’s counsel moved to dismiss on the ground that there was another action pending in the Supreme Court involving the same issues. The counsel for the plaintiff declared that the action in the Supreme Court did not involve the same issues, and objected ’to the granting of the motion to dismiss without an inspection of the pleadings in the Supreme Court action. Notwithstanding this
p. 926
entirely proper objection, the court peremptorily awarded judgment dismissing the complaint, with $27.41 costs' to the defendant. The mere recitation of these facts shows that the judgment must be reversed, and makes further comment unnecessary.
Judgment reversed, and a new trial ordered, with costs to the appellant. All concur.