176 A.D. 798 | N.Y. App. Div. | 1917
The defendant Bonsall relies upon abatement by another action pending. The plaintiff contends, first, that a rule as stated in Westminster Church v. Presbytery of N. Y. (211 N. Y. 214, 219) is decisive, in that the court say, by the chief judge: “ As to the plea that another action is pending for the same cause, it appears that in the action thus mentioned the Trustees of the Presbytery are the plaintiffs while the Westminster Presbyterian Church of West Twenty-third Street is the defendant. To render such a plea available the other action must be one in which the present plaintiff is thé plaintiff and the present defendant is the defendant. 1 If the party who interposes such defence is a plaintiff in such other action, it is no defense, although for the same cause.’ (Walsworth v. Johnson, 41 Cal. 61.) ‘ The very foundation of such a defence
is the maxim “Nemo debet bis vexari,” etc.; and manifestly this can have no application when the first suit is brought, not by, but against, the person who is the plaintiff in the second action.’ (Id.) ”
The question now presented was not up in that case for decision. It is true that the present plaintiff is not the plaintiff in the former action, for in that action the present defendant as plaintiff sues for a balance due for moneys expended by bim as agent and manager of defendant’s affairs, and the present plaintiff, as defendant, pleaded general denial, and as a defense and counterclaim the allegations made by her in this action. And she prayed, not only for a dismissal of the plaintiff, but also that he account for and return to the defendant all moneys and property received from defendant or in defendant’s behalf, and for any other appropriate relief.
The precise question, then, is this: If the same person voluntarily and unnecessarily plead, as a counterclaim, a cause of action and thereafter plead the same cause in a separate action against the same defendant, is the plea of another action pending available to his adversary? The vexation does not arise from the form but the fact of the double pleading. It is as much vexation whether the same person plead the one cause twice as plaintiff, or whether he plead it once as plaintiff and again as defendant but so pleading as if a plaintiff.
I do not, then, interpret the language of the court in the Westminster Church Case (supra) as contrary or contradictory to this conclusion. The application of the principle is recognized in Oroshon v. Lyon (16 Barb. 461, 465), where the court pointed out that section 144 of the Code of Procedure showed that the rule was not confined to a case where the same person was plaintiff in both proceedings, inasmuch as the language of the section. was not an action pending by the same plaintiff against the same defendants, as it should have been to sustain the objection, but an action pending between the same parties. It is between the same parties, although those who are the actors in one action are the defendants in the other. Section 488 of the Code of Civil Procedure, that has supplanted the said section 144 of the Code of Procedure, is in the same language (Subd. 4 superseding subd. 3): “ That there is another action pending between the same parties, for the same cause.” In Matter of Hood (27 Hun, 579) the court, per Cullen, J., say: “It may be con ceded that the general rule is, as claimed by the appellants, that where there are two proceedings pending between the same parties for the same cause of action, the proceeding first commenced is a bar to the latter, and this although the same persons are not plaintiffs in both proceedings. (Qroshon v.
I am of opinion, however, that the order should be affirmed. The theory of the action is that the plaintiff is entitled to an accounting by the defendant as to moneys intrusted to him as agent of the plaintiff, of which moneys, or of some of them, it
I advise affirmance of the order, with ten dollars costs and ' disbursements.
Thomas, Mills, Rich and Putnam, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.
See Code Proe. § 149, subd. 2; now Code Civ. Proe. § 500, subd. 2. — [Rep.