Ward v. Gore , 37 How. Pr. 119 ( 1868 )

Barrett, J.

The point is well taken, that there is another action pending between the same parties, for the same cause of action, (Code § 144, sub. 3.) The special averments con- ' tained in the present complaint, and the extended relief sought, do not change the character of the action. It is nothing more nor less, than an ordinary action between partners, after a dissolution for an accounting and settlement of the partnership affairs. Prior to the commencement of this action, the present defendant had actually served his complaint in a similar action in this court against the present plaintiff. In the action first commenced, the averments were fewer and the prayer simpler and less special. But the action was the same, and indeed all the averments of the present complaint and affirmative relief of quite as comprehensive a character could have been, and may yet be, there set up and demanded. The cases too fully support the objection. (Groshon agt. Lyon, 16 Barb., 461; Hornfager agt. Hornfager, 6 How., Pr. R., 279; McCarthy agt. Peake, 9 Abb. P. R., 164).

The temporary injunction must be dissolved.