Ferrandino v. Cartelli

12 A.D.2d 604, 208 N.Y.S.2d 750, 1960 N.Y. App. Div. LEXIS 6551

Opinion

Order entered on October 2, 1959 and the judgment thereon dismissing the complaint on the ground of another pending action between the parties reversed, on the law, on the facts and in the exercise of discretion, with costs to plaintiffs-appellants and the motion denied, with $10 costs. In the prior action judgment was entered December 26, 1958 after inquest. In this action on July 23, 1959' defendant-respondent moved to dismiss the complaint on the ground that the prior action was pending. (Rules Civ. Prac., rule 107, subd. 3.) In the interim the moving defendant had moved to vacate the judgment in the prior action on the ground that she had not been served with process. No prior action was pending when the order to dismiss this action was made because judgment had been entered in the prior action. The judgment in the first action terminated the action and the pendency of the motion to vacate it did not serve to convert it into a pending action. (Porter v. Kingsbury, 77 N. Y. 164, 169; see, also, Gentilala v. Fay Taxicabs, 243 N. Y. 397.) In any event defendant should be estopped from claiming the existence of a prior action, where it has been demonstrated that the prior action, on defendant’s objection, was void because of lack of prior service of process. To claim successfully that a prior action is a nullity, and then to assert it bars a subsequent action is a completely inconsistent position. Concur — Botein, P. J., Breitel, Valente, McNally and Stevens, JJ.