Fisher v. Dusenbury

15 Jones & S. 488

• Court: The Superior Court of New York City
• Decided: December 5, 1881
• Status: Published

Opinion

By the Court.—Sedg-aviok, Ch. J.

I am of opinion that the pendency of the first action, considered in connection with the fact that the appellant had been, without any application on his part, made a defendant therein and practically an actor, justified the appellant in not prosecuting the present action until the first had been determined. The order making him a defendant, justified his believing that the rights of the parties ■could be ascertained iu the former action. It was a proper case in which to have the judgment of the general term on the questions of law involved. On the other hand, the bringing of the present action was a proper precaution against the plaintiff being left without any adjudication. In. short, it would not have been just to call upon the appellant to litigate the two notions contemporaneously. If the present order stand, the appellant, without fault on his part, will be deprived of an opportunity to present the merits of his alleged cause of action, for another action on it would barred by the statute of limitations.

Order reversed, and motion denied, with $10 costs.

Freedman, J., concurred.