Avery v. Title Guarantee & Trust Co.

Defendant trustee has succeeded upon a motion made in advance of joinder of issue under section 278 of the Civil Practice Act and rule 106 of the Rules of Civil Practice, in dismissing the complaint on the ground that another action was pending between the same parties for the same cause at the time when this action was instituted. ■ Although under section 278 of the Civil Practice Act and rule 106 of the Rules of Civil Practice affidavits may not be used upon such a motion, it appears that the parties nevertheless treated the motion as though made under rule 107. The record shows that…