Gentilala v. Fay Taxicabs, Inc.

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: CRANE
• Citation: Gentilala v. Fay Taxicabs, Inc., 243 N.Y. 397 (N.Y. 1926)
• Decision Date: 19 October 1926
• Parties: PATSY GENTILALA, an Infant, by MICHAEL GENTILALA, His Guardian ad Litem, Appellant, v. FAY TAXICABS, INC., Respondent.

243 N.Y. 397

153 N.E. 848

GENTILALA

v.FAY TAXICABS, Inc.

Court of Appeals of New York.

Oct. 19, 1926.

Action by Patsy Gentilala, an infant, etc., by Michael Gentilala, his guardian ad litem, against the Fay Taxicabs, Inc. From a judgment of the Appellate Division (214 App. Div. 255, 212 N. Y. S. 101), reversing, as a matter of law, a judgment of the Trial Term on a verdict of a jury in favor of plaintiff, plaintiff appeals.

Reversed, and judgment of Trial Term reinstated.

Appeal from Supreme Court, Appellate Division, First department.

David M. Fink, Jacquin Frank, and Sol Boneparth, both of New York City, for appellant.

Arthur K. Wing and James G. Purdy, both of New York City, for respondent.

CRANE, J.

We agree fully with what the Appellate Division has stated regarding civil practice rule 107 and section 278 of the Civil Practice Act (as amended by Laws 1921, c. 372). We do not think, however, that the attempt of the trial judge to misapply these provisions required as matter of law the reversal of the judgment.

The action, which is one for negligence, was tried out upon the merits and resulted in a verdict for the plaintiff which the Appellate Division has stated was fully justified by the evidence. The error, if it be error, which moved the Appellate Division to grant a new trial, was a ruling of the trial judge which had nothing whatever to do with the merits of the case, but related solely to procedure. The defendant had pleaded that another action was pending for the same cause. This defense was properly pleaded in the answer although the defendant could have moved under civil practice rule 107 upon the complaint and affidavits to dismiss the complaint for this reason. This is fully and correctly explained in the opinion of the Appellate Division.

Levy and Hartman were the attorneys for the plaintiff in the previous action. At the close of the trial of this case there was presented to the trial judge the affidavit of Mr. Levy asking for the discontinuance of the action brought by his firm and an order was thereupon signed by the judge discontinuing the action. The order was then offered in evidence by the plaintiff in this action and was a complete answer to the defense of a prior action pending. Porter v. Kingsbury, 77 N. Y. 164, 167. If the matter had rested here there would have been no difficulty. A party has a right to discontinue an action at any time upon payment of costs where the rights or interests of the adverse party are not affected. Matter of Butler, 101 N. Y. 307, 4 N. E. 518. The question of costs was not raised by the defendant on the application to discontinue; the objection to granting it being based upon a claim of surprise and the demand for the withdrawal of a juror. Taxable costs were awarded to the defendant in the order of discontinuance.

Up to this point, therefore, we have a case tried out on the merits; the defense of a previous action pending having been avoided by the entry of an order during the trial discontinuing that action. At the end of the trial or at the time of the verdict there was no prior action pending; it had been discontinued.

Subsequently the trial judge, of his own motion, reconsidered his ruling and denied the motion to discontinue the previous action. At the same time he denied the defendant's motion for a new trial on the ground that it should have moved under civil practice rule 107 for a judgment on the ground that another action was pending. In this the judge was wrong as is fully shown by the Appellate Division opinion. The order entered also stated:

‘That the plaintiff's motion to dismiss the action brought...