83 N.Y.S. 897 | N.Y. App. Div. | 1903
= This is an action for partition. October 21, 1901, Jessie B. Crawford, in an action for partition of the same premises, served a .summons on James C. Hart and ¡Nellie" Hart at Saratoga Springs, .and on October 22d she similarly served Eunice Hart at Ballston • Spa, and attempted. but failed to serve Charles C. .Hart, the sole "remaining defendant. On October 23, 1901, the summons served "on Eunice Hart was sent through the mails by a sister of Frances Hart to Frances, who received it on that day. On October 23d Frances Hart handed the summons to an attorney at law, and on that ¡day and thereafter, Charles C. Hart, knowing the contents of the summons, executed and delivered a deed to his daughter, the said Frances Hart, of a one-fourth interest of the premises in question, •which deed was recorded on October 23,1901. On October 25,1901, .Frances Hart, this plaintiff, by the said attorney, filed her summons and complaint and lis pendens in this action, recorded her lis pendens, and served the defendants Charles C. Hart, Kate M. Boyce, George W. Boyce, George Jewell, Mary Colyer and John .McCoy. On October 26th Frances Hart also served James C. Hart, Jessie B. Crawford and Frank Crawford between nine a. m. •and twelve m., at Saratoga Springs, ¡N. Y., and at one p. m. of .that day served Eunice Hart at Ballston Spa. On October 26th,
The sole question raised by the answer herein is whether there Was and now is another action pending in the Supreme Court in the county of Westchester, in which action Jessie B. Crawford was and is plaintiff, and in which this plaintiff and the other defendants named in the summons and complaint herein are defendants, being for the same cause set out in the complaint herein. The action of Jessie B. Crawford was not pending against Frances Hart, the plaintiff herein, or against Charles C. Hart, her father, until they were served with process respectively. (Burton Co. v. Cowan, 80 Hun, 392, citing Warner v. Warner, 6 Misc. Rep. 251; 57 N. Y. St. Repr. 764 ; Haynes v. Onderdonk, 5 T. & C. 176.) Frances Hart filed her summons and complaint and Us pendens, and recorded the latter instrument and also served some of the defendants in her action on October 25,1901. As she was not served in the action brought by Jessie B. Crawford until after November 9th, therefore no action was pending against her until that date and until after she had begun her action. Consequently the plea of prior action pending is not available against her. (Warner v. Warner, supra ; Middlebrook v. Travis, 68 Hun, 155 ; Utica Clothes Dryer Mfg. Co. v. Otis, 37 id. 301.) As to the ex parte order of the Special Term for the service of the supplemental summons and complaint upon Frances Hart, it is sufficient
Present—Goodrich, P. J., Bartlett, Woodward, Hieschberg and Jenks, JJ.
Interlocutory judgment affirmed, without costs.