Montgomery v. Ferber , 45 Pa. D. & C. 288 ( 1942 )

Winnet, J.,

This is the second suit plaintiff has filed to recover for the loss of her fur coat which was stored with defendant. Her statement of claim shows that she has a suit pending in Court of Common Pleas No. 5, December term, 1941, no. 587, for the value of the coat. She alleges defendant has received $5,000 in restitution from the persons who stole the coats and asks for her proportionate share of' this sum of money — the recovery to be credited in the suit pending in the court of common pleas.

Defendant has filed an affidavit of defense raising questions of law.

Plaintiff has argued that she is seeking to charge defendant as a trustee, that the money he received in restitution was for the benefit of all who have lost their fur coats. Obviously, this cannot be a proceeding to make defendant a trustee. Nor does the theory of a third party beneficiary contract which is really involved in suits on insurance proceeds help her. This is a plain attempt to split a cause of action. Her suit is in the court of common pleas. She now wants a part of this claim litigated in this court. The policy of the law is opposed to the splitting up of actions: Philadelphia v. Philadelphia Rapid Transit Co., 337 Pa. 1, 4.

The affidavit of defense raising questions of law is sustained.