214 A.D. 255 | N.Y. App. Div. | 1925
This is an action for damages for personal injuries, brought on behalf of an infant who was struck by a taxicab owned by the defendant.
The issues of fact arising have been submitted to a jury, and no sufficient reason is presented for disturbing their verdict thereon. There is, however, presented as an additional ground of appeal a question of law which requires the reversal of the judgment.
The facts, in so far as necessary to determine this question of law, are, briefly, as follows: The defendant in its answer by way of defense alleged that there was another action pending between the same parties upon the same cause of action. The case was duly noticed for trial, and upon the trial the facts showed that an action had previously been commenced by a firm of attorneys other than those representing the plaintiff in this action. The defendant moved for judgment on that ground. The attorneys for the plaintiff in the other pending action then moved, during the trial and in this action, to discontinue the other action, and that motion was granted. After the verdict, however, the court
In thus holding that rule 107 was mandatory, the learned trial justice was in error. Under rules 107 and 110 of the Rules of Civil Practice, a party desiring to attack a pleading by way of a dilatory plea because of a defect not appearing upon the face of the pleading, may do so upon' motion and have the issue determined in advance of the trial, provided the motion if directed against a complaint is made within twenty days after the service thereof, and if directed against an answer, within ten days after the service thereof. But the aforesaid rules do not compel such a motion to be made in advance of the trial, and a party by failing so to move does not lose his right to take advantage at the trial of a defect not appearing on the face of the pleading if set up by way of defense as a bar to the action. It is only where certain defects, specified in rules 106 and 109 of the Rules of Civil Practice, appear on the face of the pleadings, that a party must take advantage thereof by motion in advance of the trial, or such defects are waived under the provisions of section 278 of the Civil Practice Act. This section by its terms clearly is limited to objections which appear on the face of a pleading. It reads: “ Certain objections; when waived. An objection on either of the following grounds, appearing on the face of a pleading, is waived unless taken by motion: * * *.”
In other words, certain defects, chiefly consisting of the so-called dilatory pleas, which, prior to the Civil Practice Act, could be taken advantage of by demurrer, must now be so taken by motion in advance of the trial, or they are waived. Also, like defects not appearing on the face of the pleading may now be taken advantage of by motion as well as by answer.
In the case at bar the defect of a prior action pending did not appear upon the face of the complaint and, therefore, the defendant had the right to take advantage of this defect by way of defense in its answer and to prove the fact and move for judgment on the trial.
When, however,' a plaintiff commenced an action while another action was pending against the same defendant for the same cause, and the defendant pleaded in bar the pendency of the former action, it used to be the rule of law that the plea in bar was unaffected by a subsequent discontinuance of the former action. This because the commencement of the second action was deemed vexatious, and the plaintiff accordingly was penalized. This rule, however, has been so relaxed that now a plea of a former action pending may be avoided by showing at the trial that the former action has been discontinued even subsequent to the joinder of issue. As was said in Porter v. Kingsbury (77 N. Y. 164, 167): “ The plea of a former suit pending between the parties for the same thing, was allowed, to prevent vexatious and oppressive suits, and if sustained, the second writ abated, and judgment passed for the defendant. It was, however, a plea which in its nature related to the facts existing at the commencement of the action in which the plea was interposed. The question was whether at the time of suing out the second writ, there was a writ in being, and it was formerly held to be no answer to the plea that the first suit was ended, when the plea was put in, and the reason given is, that if there was a suit in being at the time of suing out the second writ, it was plain that the second was vexatious, and ill ab initio. * * *
“ In this State the rule is settled that a discontinuance of the first suit after the commencement of the second suit may be shown in answer to the plea, and in this respect the stringency of the ancient rule has been relaxed.”
The defendant relies upon Bowker Fertilizer Co. v. Cox (106 N. Y. 555) as holding that a plaintiff may not take advantage of an order of discontinuance. That case, however, involved the doctrine of an election of remedies, and for this reason is not the authority contended for by the defendant.
It follows that the judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.
Clarke, P. J., Merrell, McAvoy and Burr, JJ., concur.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event.