Majority
p. 657Blydenburgh v. Borst. At Special Term, April 12, 1856.
Headnote
When an answer sets up, among other defences, a prior action pending for the same cause, and on a reference of the latter issue by consent, the referee has reported upon it in favor of the defendant, the court will order the complaint to be dismissed without a trial of the other issues, if no valid exceptions be taken to the report of the referee.The answer of the defendant contained several defences, and among others, that a former action brought by the plaintiff for the same cause was still pending. The single issue raised by the latter defence, was referred to J. W. Edmonds, Esq., who reported upon it in favor of the defendant, with his opinion, that the complaint should be dismissed, with costs. A motion was made before Bosworth, J., at Special Term, for an order confirming the report and dismissing the complaint. The Judge held, that, inasmuch as all the objections made against thnreferee’s report were untenable, the complaint must be dismissed, at last, however the
p. 658
other issues might be determined upon a trial of them, and therefore such a trial would be utterly useless. Enough having been ascertained and determined, in the due course of judicial proceedings, to entitle the defendant to a dismissal, at all events, and in any contingency, the motion must be granted, with costs. (Code, section 144, sub. 3; and sections 147 andT48.[1]
* This decision has been affirmed by the court at General Term.