115 N.Y.S. 495 | N.Y. App. Div. | 1909
The plaintiff, in its capacity as a taxpayer, brings this \ action to restrain the defendants from taking certain lands and water rights, comprising a strip of land about nine miles long and about Wo hundred feet wide, extending from Clear Stream to Massapequa i^i Nassau county, on the ground that such taking would constitute aji illegal act on the part of the defendants, in that they have nob secured the approval of the State Water-Supply Commission as required by chapter 723 of the Laws of 1905. Other objections are urgeid, going to the private rights of the corporation, but it does not appear to be
The learned court, in holding that the complaint did not state a cause of action, construed section 2 of chapter 723 of the Laws of , 1905,
This brings us, therefore, to the consideration of the demurrer interposed by the defendants. Section 518 of the Code of Civil Procedure says : “ This chapter prescribes the form of pleadings in an action * * * except where special provision is otherwise made by law,” and section 3333 says that the “ word ‘ action,’ as used in the Hew Revision of the Statutes, when applied to judicial proceedings, signifies an ordinary prosecution, in a court of justice, by a party against another party, for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence,” and the next section provides that, “ Every other prosecution by a party, for either of the purposes specified in the last section, is a special proceeding; ” so when we are considering any questions arising under the provisions of chapter 6 of the Code of Civil Procedure, we are dealing with actions, as defined by the Code, and not with special proceedings. Section 488 provides that tile “ defendant may demur to the complaint, where one or more of the following objections thereto appear upon the face thereof,” and among these objections is the one that there is another “ action pending between the same parties, for the same cause.” This language, the meaning of which is defined by the statute itself, does not permit of 'a demurrer on the ground stated by the defendants, that “it appears upon the face thereof that there is a proceeding other than this action pending between the same parties for the same cause.” A proceeding is not an “ action ” as that word is used in the Code of Civil Procedure. Indeed, no such thing as “-a proceeding” is known to the Code of Civil Pro-, cednre; there is a “ special proceeding,” and a “ special proceeding ” would imply that there was a legal controversy existing between
It follows, therefore, that the motion to dismiss the appeal should be denied, that the judgment and order appealed from should be
Hirschberg, P. J., Jenks, Rich and Miller, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the final award of costs. Order reversed, with ten dollars costs and disbursements. Settle orders before Mr. Justice Woodward.
Motion to dismiss appeal denied, with ten dollars costs.
This section was amended by chapter 415 of the Laws of 1906.— [Rep.