Kind v. Bacon — 67 N.Y.S. 960

Majority

p. 960

KIND v. BACON.

(City Court of New York, General Term.

January 3, 1901.)

Headnote

1. Abatement and Revival—Pendency op Other Actions.

Plaintiff sued on a Lloyd’s policy to enforce defendant’s liability as underwriter, and alleged an assignment of the cause of action to him. He produced a judgment roll in an action on the policy against the same, party, and on the same allegations, containing the complaint, which alleged an assignment of the claim to one through whom plaintiff claimed to have derived title. ¡Edil that, since this did not show an assignment to the plaintiff, a plea that the latter action was still pending was a good defense to the suit.

2. Same—Discontinuance op Actions.

Wbeje two actions on a policy against the same defendant were pending at the same time, it was error for the supreme court in one action to order the discontinuance of another, without notice to, or consent by, the defendant.

Appeal from trial term.

Action by Emanuel Kind against Alexander S. Bacon. From a judgment in favor of plaintiff, defendant appeals.

Reversed.

Argued .before FITZSIMOHS, C. J., and O’DWYER and HAS-CALL, JJ.

Eichols & Bacon, for appellant.

Menken Bros., for respondent.

The action is brought to enforce an alleged pro ■rata liability of the defendant as an underwriter on a Lloyd’s insurance policy. The complaint neither alleges, nor do the proofs show, how many individual underwriters there were to be affected, nor what the proportion was, but claims that defendant’s liability .amounted to $97.14. The answer denies most of the allegations, and pleads another action pending, in favor of one Cuff, to recover upon the same policy, against the same defendant, and under the same allegations.

The policy of insurance was not offered in evidence. Plaintiff alleged an assignment to him of the cause of action, but offered no .proof thereof. Production of a judgment roll, in an action against the attorneys in fact named in the policy, containing the complaint, which alleged an assignment of the entire claim to Cuff, under a ;policy the subject of the action, was not proof of assignment of the claim to Kind against the appellant Bacon. It is a good defense that the case of Cuff against Bacon was still pending, and the exception duly protected the defendant on appeal. The plaintiff quite •failed to make out his case, and, while it was error not to let defendant go to the jury, we proceed further, and hold the defendant entitled to even greater relief on the record. We think that the supreme court had no right nor power to assume in one action to order the discontinuance of another, without notice to, or consent by, the party defendant herein.

The judgment appealed from should be reversed, with costs of appeal, and the complaint dismissed, with costs of action. All concur.