Saratoga Auto Top & Body Co. v. Whitney , 114 N.Y.S. 925 ( 1909 )

SEABURY, J.

The judgment appealed from must be reversed, because it was entered without evidence of any character being offered, although the complaint stated a cause of action. When the case was called for trial, the defendant’s counsel moved to dismiss on the ground that there was another action pending in the Supreme Court involving the same issues. The counsel for the plaintiff declared that the action in the Supreme Court did not involve the same issues, and objected ’to the granting of the motion to dismiss without an inspection of the pleadings in the Supreme Court action. Notwithstanding this entirely proper objection, the court peremptorily awarded judgment dismissing the complaint, with $27.41 costs' to the defendant. The mere recitation of these facts shows that the judgment must be reversed, and makes further comment unnecessary.

Judgment reversed, and a new trial ordered, with costs to the appellant. All concur.