Cassidy v. Cassidy

RODENBECK, J. A demurrer on the ground that another action is pending will not be sustained, unless it appears that the demurrant may be subjected to the annoyance of a trial in the alleged pending action and to a liability concerning the same cause of action to which he demurs. No such situation is presented by the demurrer in this case. The action relates to a promissory note which had been discounted at a bank, and which the bank had sued. The plaintiff, then a defendant, paid the amount of the claim, “being the amount of said note and interest, and the costs of said action,” in settlement thereof. The action has therefore been settled, and it is a fair inference, perhaps, that it has been discontinued, although no such allegation appears in the complaint; but it is clear that the defendant in this action will not be subjected to the annoyance of the trial of any alleged pending action, and certainly no judgment could be recovered against him therein. Parker v. Selye, 3 App. Div. 149, 38 N. Y. Supp. 164; Geery v. Webster, 11 Hun, 428; McGrath v. Maxwell, 17 App. Div. 246, 45 N. Y. Supp. 587; Cobb v. Cullen Bros., 68 App. Div. 179, 74 N. Y. Supp. 56; Dawley v. Brown, 79 N. Y. 390, 398. The complaint being sufficient in other respects, the demurrer should be overruled, with leave to the defendant to answer within 20 days upon the payment of costs.