Consolidated Fruit-Jar Co. v. Wisner

GOODRICH, P. J. The complaint contains allegations making this an action in equity to compel an accounting by the defendant for Ms acts while president of the plaintiff corporation. The defendant answered, and, among other defenses, set up as a plea in abatement the pendency of a prior action, the venue of which was; in the county of Monroe. The issues were referred to Thomas Allison, Esq., before whom stipulations were made so as to call simply for a decision of the question whether the plaintiff should have an interlocutory judgment requiring the defendant to account as to-matters alleged in the complaint. The referee decided that the defendant was bound to account, and from the interlocutory judgment entered thereon the defendant appeals. The opinion of the referee fully states the facts upon which the question arose, and will be found in the note hereto appended. The opinion of the learned appellate court of the Fourth department, referred to in the opinion of the referee, is reported in 25 App. Div. 362, 49 N. Y. Supp. 500, and is the declared law of -this litigation, concurrence with which is requisite, not alone for the orderly administration of justice, but because the reasoning of the opinion commends itself to our judgment. That opinion holds that the action in the county of Monroe is an action at law. There is authority for saying that the pendency of an action at law cannot [727] be pleaded in abatement of a suit in equity, even where the same party is the plaintiff in each action. Gillette v. Smith, 18 Hun, 10; Thorne v. Tanning Co., 15 Fed. 289, 291; Story, Eq. Pl. § 742; Daniell, Ch. Prac. 658; 1 Enc. Pl. & Prac. 752, note. These decisions and authorities, except the first cited, which was rendered by the old general term of the Second department, relate to systems of practice where the distinction between law and equity forms remains in force. It would seem that the reasoning ought to prevail, a fortiori, under our Code of Civil Procedure, where, although the fundamental distinction of law and equity continues, the forms of pleading are practically abolished. It follows that the interlocutory judgment must be affirmed, unless the conditions are changed by the fact that the defendant, Wisner, under the leave granted by the appellate division in the action in the county of Monroe, has amended his complaint, and has changed the rights of the plaintiff as they existed at the time the present action was commenced. Even conceding that the amended complaint has changed that action from one at law to an action in equity,—-which we are not called upon to decide,—we are clearly of opinion that such an amendment, made after the commencement of the present action, can have no effect to work an abatement of the present action. The interlocutory judgment must therefore be affirmed. Interlocutory judgment affirmed, with costs. All concur.