Swart v. Borst
New York Supreme Court
Plaintiff sues to recover the amount of a promissory note executed by the defendants to him, bearing date 12th of September, 1856, for $232.64, and payable three days after date with interest. This suit was commenced on the 13th day of April, 1858. ' The defendants plead a former suit in bar for the same cause of action, commenced on the 15th day of February, 1858, and still pending.
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Plaintiff sues to recover the amount of a promissory note executed by the defendants to him, bearing date 12th of September, 1856, for $232.64, and payable three days after date with interest. This suit was commenced on the 13th day of April, 1858. ' The defendants plead a former suit in bar for the same cause of action, commenced on the 15th day of February, 1858, and still pending. The answer was verified on the 28th of April, 1858, and served on the 3d day of May, 1858, and with it a notice of trial for the Schoharie circuit, commencing on the 17th of May, 1858. The first suit was…
1Opinion of the Court
Hogeboom, Justice.
The case of Averill agt. Patterson, in the court of appeals, (10 How. Pr. Pep. 85,) decides that to effect a discontinuance, an order must be entered. Hence the first suit was not discontinued when the Schoharie circuit commenced on the 17th of May. There was nothing that I discover up to that time, which would have prevented the plaintiff from entering judgment 'in the first action. Mo answer or appearance had been put in, unless the notice of motion to set aside the j udgment was an appearance. I can see no good reason for commencing the second suit. It seems to have been…
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