O'Leary v. Tooker , 116 N.Y.S. 664 ( 1909 )

PER CURIAM.

Defendant did not deny plaintiff’s claim, but counterclaimed a -sum largely in excess thereof, and demanded judgment only for a dismissal of the complaint. Plaintiff replied, alleging that there is another action pending in the Supreme Court between defendant and plaintiff’s assignor for the same cause set' forth in the counterclaim. To the reply defendant demurred, as insufficient in law upon its face. This demurrer was overruled, and defendant appeals.

Porter v. Fuld & Harch Knitting Co., 114 App. Div. 292, 99 N. Y. Supp. 815 was an action in replevin. Plaintiff demurred to the answer, which' alleged as follows:

“That there is another action pending between the same parties to this action for .the same cause of action set forth in the complaint herein.’’

The court, sustaining the demurrer, said:

“It is clear that the matter alleged in this so-called separate defense cannot be sustained as a defense that another action is pending between the same parties, because it is not alleged that such other action was pending at the time of the commencement of this action.”

Upon this authority this judgment must be reversed.

Interlocutory judgment reversed, and demurrer sustained, with costs to appellant to abide the event.