The Udell Manufacturing Company, Appellant, v. John Perkins, Respondent

The Udell Manufacturing Company, Appellant, v. John Perkins, Respondent. [MAJORITY] It does not appear on the face of the complaint in this action that another action is pending between the same parties for the same cause of action. The mere fact that the demurring party produced a witness on the trial of an issue of law, to prove over objection that another action is pending between the same parties, is so incongruous with the specified cause of demurrer that the interlocutory judgment of the City Court of Yonkers must be reversed, with costs and disbursements, and the demurrer overruled, with ten dollars costs, with leave to defendant to answer within twenty days on payment of the costs of this appeal, as well as the motion costs. Jenks, P. J., Burr, Carr, Rich and Putnam, JJ., concurred.