96 N.Y.S. 221 | N.Y. App. Term. | 1905
In this action for three items, aggregating $150, the defendant interposed, as a partial defense, the pendency of another action for the same cause. The record in the former action was introduced in evidence, and at once the complaint in this action was dismissed. It appears, however, that the former action applied only to two out of the three items involved in this action. Of course, the plea was available, if at all, to only two items, and it was error to dismiss the complaint absolutely.
Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.