Kall & Kall, Inc. v. Nussbaum

26 Misc. 2d 822, 209 N.Y.S.2d 416, 1960 N.Y. Misc. LEXIS 2290

• Court: New York Supreme Court
• Decided: October 21, 1960
• Status: Published

Opinion

Samuel Babin, J.

Motion by the defendants Weinreb to dismiss the complaint as to them, pursuant to subdivision 3 of rule 107 of the Buies of Civil Practice on the ground that there is another action pending between the same parties for the same cause.

An action was commenced against the moving defendants herein by the plaintiff by the service of a summons on June 25, 1955. This summons named persons as defendants not named in the instant action. A complaint was never served in that action. The present action was commenced by the service of a summons and complaint on or about December 17, 1957. “ To meet the requirements of Buie 107, subdivision 4 [now subd. 3] of the Rules of Civil Practice a comparison of the allegations of the two complaints must demonstrate that the claims of each are identical and the same relief is sought upon a like theory, see Bradford v. Brooklyn Trust Co., 269 App. Div. 549 (Simon v. 36 C. P. S., Inc., 132 N. Y. S. 2d 891, 892.)

It appears that no complaint was ever served in the first cause of action; consequently it cannot be determined whether or not the requirements above set forth could be met. Further the parties defendant in both actions differ to some degree. The instant motion was commenced by the service of the notice of motion and supporting affidavit on August 25, 1960, the return date thereof being September 16, 1960. It was subsequently adjourned to October 10. On September 9, 1960, a motion was before the court for an order to discontinue the action commenced on June 25,1955. Although this motion was opposed ah order was entered on September 15, 1960, discontinuing said action. The first action was, therefore, dismissed before this motion came on to be heard. There being no other action, the instant motion is denied.