Ratzer v. Ratzer

2 Abb. N. Cas. 461 | N.Y. Sup. Ct. | 1877

Lawrence, J.

Assuming that the learned counsel for the defendant is right in contending that the questions involved in this action and in the suit in the court of chancery of the State of New Jersey are the same, or substantially the same, I am of the opinion that the motion for leave to file a supplemental answer should be denied, for the reason that the action in this court was commenced first. The rule is 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 last,, or goes in abatement of it (Groshon v. Lyon, 16 Barb. 461). In the case of Bate v. Fellowes (4 Bosw. 639), referred to by counsel, the court refused to pass upon the question of the suffi-... ciency of the matter proposed to be pleaded in the supplemental answer, because it depended upon a question of fact to be proved. Here the question of sufficiency is necessarily one of law, and under the decision in 16 Barb., above cited, the matter proposed to be pleaded cannot be a bar to this action.

Motion denied, with $10 costs.