Majority
p. 488HOMER FISHER, Appellant, v. WILLIAM W. DUSENBURY, as Adm’r, &c., Impleaded, &c., Respondent. Before Sedgwick, Ch. J., and Freedman, JJ. . Decided December 5, 1881.
Headnote
Dismissal of complaint—where not granted for failure to prosecute.Where one, by order of the court, and not upon his own motion, is made a party defendant to an action, and properly seeks to enforce certain rights therein, and subsequently, for the protection of the same rights, brings an action for their enforcement, the complaint in such second action should not be dismissed for failure to prosecute the same until the determination of the first action. In this case it appeared that the enforcement of such rights had been denied upon appeal in the first action, upon technical considerations alone, and further, that if the complaint in the second action were dismissed, the statute of limitations would bar plaintiff’s said cause of action.
Appeal by plaintiff from order dismissing the complaint as to the defendant, William W. Dusenbury,
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administrator, &c., for alleged neglect to prosecute the action.
The action was in equity for an accounting. The transaction out of which the claim arose was an alleged joint adventure between the plaintiff, a firm of Thomas Dusenbury & Son, and other persons. The complaint alleged that Thomas Dusenbury, of the firm, had died intestate, and that William W. Dusenbury had been appointed and was administrator of, &c. ; that the other members of the firm, and who were defendants, were insolvent. Issue was joined as to the respondent in October, 1880, and as to the other defendants,. Dusenbury, not before March 5, 1881. The motion to-dismiss was made June, 1881.
In opposition to the motion it appeared, among other things, that prior to the commencement of this action, an action had been begun by Charles Dusenbury, in which he had claimed an accounting in respect of the alleged joint adventure ; that in such action the-court had ordered that the present plaintiff and the present defendant, Dusenbury, should be made parties ; that such action had proceeded to judgment in which the complaint was dismissed, and it was held that the complaint having been dismissed, the there defendant, Fisher, was not entitled to an accounting. The defendant, Fisher, appealed from such judgment, and-the appeal was argued at this term, and the judgment has been affirmed.
Theodore F. Miller, for appellant.
Ira D. Warren, for respondent.
I am of opinion that the pendency of the first action, considered in connection with the fact that the appellant had been, without any application on his part, made a defendant therein and practically an actor, justified the appellant
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in not prosecuting the present action until the first had been determined. The order making him a defendant, justified his believing that the rights of the parties ■could be ascertained iu the former action. It was a proper case in which to have the judgment of the general term on the questions of law involved. On the other hand, the bringing of the present action was a proper precaution against the plaintiff being left without any adjudication. In. short, it would not have been just to call upon the appellant to litigate the two notions contemporaneously. If the present order stand, the appellant, without fault on his part, will be deprived of an opportunity to present the merits of his alleged cause of action, for another action on it would barred by the statute of limitations.
Order reversed, and motion denied, with $10 costs.
Freedman, J., concurred.