102 N.Y.S. 65 | N.Y. Sup. Ct. | 1907
This action was commenced September 29, 1906, with the venue laid in Monroe county; and the plaintiff seeks to recover $505, balance due for services rendered by him as an architect, in drawing plans and specifications for improvements to two buildings owned by the defendant at Penn Tan and Crosby, in Tates county. The complaint alleges the employment of the plaintiff by the defendant, the due performance of the work and the acceptance by the defendant of the plans and specifications furnished, and states that the services were reasonably worth $805, no part of which had been paid, except $300 received thereon by the plaintiff in the form of bonds and stocks of the defendant corporation, which were received and credited as and for $300. The answer is, in substance, first, a general denial; second, an allegation that plaintiff solicited this work of the defendant and agreed that the plans to be drawn by him should be. subject to the approval of the defendant and
On the trial of this action the plaintiff introduced evidence to support his cause of action, and the defendant then proved that the action commenced by the Standard Wine Company against Tyler was pending when this action was commenced, and had not been terminated by judgment or otherwise, and withdrew the counterclaim set up in its answer and moved to dismiss the complaint on the ground of the pendency of the Yates county action, the decision upon which motion was reversed; whereupon the defendant rested without offering any evidence upon the merits. The jury was excused and the case submitted to the court for decision; and the sole question now to" be determined is whether the pendency of the Yates county action can be successfully pleaded in abatement of this suit.
It is clear that the plea in abatement is not well taken here, because the two suits are not for the same cause.
The old rule that no man shall be twice vexed for the same cause is the basis of the plea in abatement that there is another action pending between the same parties for the same cause. The plea has not been changed by the Code and remains now as it was at common law, and it must appear that the prior action is pending between the same parties for
Of course, where two actions are brought concerning the same subject matter, and in both suits the same question is necessarily involved, either singly or in connection with other matters not involved in both, and a judgment is duly rendered in one of the actions upon the question common to both suits, that judgment becomes at once and forever decisive as to that question in the other litigation between the same parties; and the date of the commencement of the actions, respectively, is of no consequence as to the effect of the judgment as res adjudicata. If the judgment is first rendered in the later suit, it will control necessarily the determination of the same question in the prior action when that is brought to trial; but, until one action proceeds to judgment, the pendency of the other cannot be set up as a defense, unless the second suit is for the same cause of action as the first.
The distinction just pointed out between actions for the same cause and actions for different causes, but depending in whole or in part upon the same question, is, of course, elementary (Cromwell v. County of Sac, 94 U. S. 351; Gates v. Preston, 41 N. Y. 113; Reich v. Cochran, 151 id. 122; State of Wisconsin v. Torinus, 28 Minn. 175) ; and it is this very distinction which leads to a decision for the plaintiff upon the plea of abatement interposed by the defendant herein.
Two causes of action are alleged here, and they are absolutely inconsistent. If the cause of action set up by the Standard Wine Company in its complaint actually exists, then the cause of action set up by Tyler in his complaint
The defendant, while conceding that a defendant in an action in the Supreme Court is not bound to set up a counterclaim in his own favor which is not involved in the issue tendered by the complaint, but may resort to an independent action for the recovery thereof, still urges that, where an alleged cause of action in favor of a defendant can only be established by establishing the converse of an issue tendered by the complaint, the counterclaim must be set up in the answer, and that such defendant will not be permitted to withhold it. and bring an independent cross action therefor while the other suit is pending, and cites Bartholomay Brewing Co. v. Haley, 16 App. Div. 485, to sustain that proposition ; and the ruling in that case would seem to support the defendant’s contention. But, with great respect, the state
In Gates v. Preston, supra, the defendant was a physician and the plaintiff his patient, who brought the action for malpractice. While the action was pending, the physician brought an action against the patient before a justice of the peace for the value of his professional services in the very matter concerning which malpractice was charged in the first action; and the physician recovered a judgment and then, by supplemental answer, pleaded it in bar in the malpractice case; and the Court of Appeals held that the plea in bar was well taken, because the judgment for services was predicated upon the performance of his professional duty, which necessarily excluded the contrary hypothesis of malpractice. It would seem that some question was raised as to the applicability of the plea in bar, where the judgment was rendered after issue had been joined in the first action, in which respect the court says at page 116: “ Mor is it an objection that the defense was interposed after the cause was at issue.
There is, no doubt, ample power in the court, upon motion before trial, where two actions between the same parties involve the same question and are pending in the same court, to determine for the convenience of all concerned and the proper expedition of the business of the court which of the two actions shall he first tried. Such an application is addressed, however, to the discretion of the court; and, when that discretion is exercised, the question as to which suit shall be first tried is not necessarily decided in favor of the action first commenced. Thomson v. South Eastern R’y Co., L. R. (9 Q. B. D.) 320.
Ho such motion was made in this case, defendant relying upon a supposed legal right to insist that the action be dismissed because of the pendency of the prior action; and judgment is accordingly ordered for the plaintiff for the balance of his claim.
Judgment accordingly.