Dawley v. Brown
New York Supreme Court
Appeal from a judgment in favor of the defendant, entered upon a nonsuit directed at the Circuit. The action was in ejectment for the recovery of certain real estate in the counties of Ontario and Monroe. The answer set up the pendency of another action between the same parties for the same cause of action, and further stated that “ the defendant on the trial of this action will set up the pendency of said action as a bar to the further prosecution of this action.”
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Appeal from a judgment in favor of the defendant, entered upon a nonsuit directed at the Circuit. The action was in ejectment for the recovery of certain real estate in the counties of Ontario and Monroe. The answer set up the pendency of another action between the same parties for the same cause of action, and further stated that “ the defendant on the trial of this action will set up the pendency of said action as a bar to the further prosecution of this action.” It appeared on the trial that the plaintiff had brought an action against the defendant to recover the land in question, and…
1DissentE. DabwiN Smith, J.
At common law, the plea of a former suit pending for the same cause of action, always contained an averment that the parties were the same in both actions. (2 Chitty’s Plead., 19.) Where it appears by the complaint upon its face, that theré is another action pending between the same parties for the same cause, it is a good ground of demurrer under section 144 of the Code, and if the fact or matter enumerated in said section as a ground of demurrer does not appear upon the face of the complaint, the objection' under section 147 may be taken by answer. Under the Code, as at common law, the…
2Cases cited3 opinions
- Stowell v. . ChamberlainNew York Court of Appeals · 1875
- Johnson v. SmithNew York Supreme Court · 1811
- Brush v. TaggartNew York Supreme Court · 1810