Cipolla v. Cipolla

255 A.D. 789, 7 N.Y.S.2d 66, 1938 N.Y. App. Div. LEXIS 5338

Opinion

Order granting defendant’s motion to dismiss complaint under rule 107, subdivision 4, of the Rules of Civil Practice, affirmed, with ten dollars costs and disbursements. In our opinion, the prohibition against the maintenance of two separate actions, pending between the same parties for the same cause, contained in rule 107 of the Rules of Civil Practice, subdivision 4, contemplates two such actions in which the same relief is sought upon the same general theory, irrespective of whether or not each of such actions sets forth an independent cause of action. Lazansky, P. J., Hagarty, Carswell, Davis and Johnston, JJ., concur.