Bradford v. Brooklyn Trust Co.

Per Curiam. The complaint merely repeats some of the charges stated against these appellants in the prior action. The only difference is that in the present complaint appellants are charged with having caused Durkee Marine Products Corporation to commit the alleged wrongs, whereas in the earlier action it was claimed they conspired with others to cause this company to commit the very same wrongs. A comparison of the allegations of the two complaints demonstrates that the claims in each are identical and that the same relief is sought upon a like general theory. There is, too,, a sufficient identity of parties in both actions to meet the requirements of rule 107, subdivision 4, of the Buies of Civil Practice. Under the existing status of the two cases, appellants would be subjected to two trials, one with a jury and the other without, when the controversy can and should be settled in one law suit. The conspiracy action clearly embraces all the charges set forth in the present action. (Keller v. Levy, 265 App. Div. 723.) In the circumstances the present action should be dismissed. (Cipolla v. Cipolla, 255 App. Div. 789.) The order should be reversed, with $20 costs and disbursements, and the motion for judgment dismissing the complaint upon the ground that there is another action pending between the same parties for the same causes should be granted. Martin, P. J., Townley, Glennon, Cohn and Callahan, JJ., concur. Order unanimously reversed, with $20 costs and disbursements, and the motion granted.