Utica Clothes Dryer Manufacturing Co. v. Otis — 44 N.Y. Sup. Ct. 301

Majority

p. 301

UTICA CLOTHES DRYER MANUFACTURING COMPANY, Appellant, v. WALDEMIR OTIS, Respondent, Impleaded with ARTHUR S. HERENDEN and GEORGE B. HERENDEN.

Headnote

Two actions against the same defendants upon the same cause of action — when the pendency of one such action in the United States cov/rt does not prevent the commencement of the other in the State court.

The summons in an action, commenced in the Supreme Court of New York against two defendants to enforce a joint liability, having been served on one defendant only, the action was, upon his application, removed into a United States District Court. While that action was there pending, no judgment having been entered and no attachment having been levied, this action was commenced in the Supreme Court of New York against the same defendants upon the same cause of action by the service of the summons upon the defendant not served in the first action.

Held, that the pendency of the former action was not a bar to the commencement and prosecution of this one.

Appeal from an order, made at Special Term, vacating and setting aside the service of the summons herein npoa the defendant Otis and dismissing the action.

On the 1st day of May, 1883, a partnership, composed of the above named defendants, existed, doing business under the firm name and style of George B. Herenden & Co., in the State of Ohio, and, as the plaintiff claims, they became and were jointly indebted to him as such partners. The defendants were each residents of the State of Ohio. On the first day of May aforesaid, an action was commenced in the Supreme Court of the State of New York to recover the demands. All the members of the firm were made defendants. The summons, however, was served only on the defendant Arthur S. Herenden. Afterwards, upon the application of the defendant so served, the action, was, by an order of the State court removed Into the United States Court for the Northern District of New York, in pursuance, of the statute in such case provided. The order for removal was made on the 12th day of July, 1883. After removal and issue joined, the case was referred to a referee to hear and determine, but the same has not

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been brought-to trial before him. While the action was pending in the United. States Court and in the condition above stated, and ■on the 2d day of December, 1884, this action, was commenced in the Supreme Court of this State, by the service of a summons on the defendant Waldemir Otis alone. It was commenced for the same cause of action as the original action, and for the purpose as stated of establishing the liability of the defendant Otis upon said cause of action, and to charge his individual property. Upon these facts the defendant Otis moved to vacate and set aside the service of the summons on him, on the ground that an action for the same cause of action is pending in the United States Court against the same defendants.

Nicholas JS. Neman, for the appellant.

James S. Sherman, for the respondent.

Pendency of another action in the District Court of the United States for the same cause of action, resting upon a service of summons upon Herenden, one of the defendants (no judgment having been entered in that action, and no attachment having been levied upon property), is not a bar to this action. In that action the defendants not personally served could not be, upon such service as was made on one defendant, personally charged.

This action, for aught that appeared in the papers used at Special Term, may be maintained. (Bowne v. Joy, 9 Johns., 221 ; Walsh v. Durkin, 12 id., 101; Burrows v. Miller, 5 How., 51 ; Cook v. Litchfield, 5 Sandf. Sup. Ct., 342.) This is not an action to enforce a judgment already recovered. The plaintiff does not rest upon or seek to recover upon a judgment already had. (Morey v. Tracey, 92 N. Y., 583 .) Statutes which give a remedy to enforce a judgment, obtained by service upon one of the joint debtors, are cumulative, and do not by implication take away a party’s common-law right to enforce his debt. (Lane v. Salter, 51 N. Y., 1 .)

In the case just cited Lott, Ch. C., says, of a judgment entered on service upon only one joint debtor, that “ it is no evidence of any personal liability, and does not constitute a debt against the party not served.” The same doctrine was asserted by Paeeee, J., for the

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"General Term of tbe sixth district in Dean v. Eldridge ( 29 How., 218 ; Code Civ. Pro., §§ 1932, 1933).

~We are of the opinion the Special Term onght not to have vacated the service of summons and onght not to have dismissed, the action.

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

Follbtt and YaNN, JJ., concurred.

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