Frances Hart, Respondent, v. James C. Hart and Others, Appellants, Impleaded with Others

Frances Hart, Respondent, v. James C. Hart and Others, Appellants, Impleaded with Others. Pa/rHtion — the action is not pending against a defendant named therein until the summons is served on him — an action for partition may be brought by one who is a party defendant, but not as yet served,'inanother partition suit, in which certain ■ of the defendants have been already served — the action is not barred by such other suit, although the plaintiff in the action had knowledge thereof. Jessie B. Crawford brought an action to partition .certain premises, and, on October 21 and 22, 1901, served the summons therein upon all Of the defendants but Charles C. Hart. October twenty-third the summons served on one of the defendants was sent to Frances Hart, who was a daughter of Charles C. Hart. Frances Hart thereupon consulted an attorney, and thereafter, on the same day, Charles C. Hart, with knowledge of the contents Of the summons, executed to the said Frances Hart a conveyance of his interest in the premises. On October twenty-fifth Frances Hart, through the attorney before mentioned, filed a summons and complaint and Us pendens in an action to partition the premises and recorded the Us pendens. She also served .some of the defendants on that day. On October twenty-sixth Jessie B.' Crawford served the summons in the action brought by her upon Charles C. Hart. October twenty-eighth Jessie B. Crawford filed her complaint and Us pendens and recorded the latter instrument. November second Frances Hart completed, the service of the summons and complaint in the action brought by her. November ninth an ex parte order was made in the action brought by Jessie B. Crawford, bringing in Frances Hart and other persons as parties defendant, and permitting the filing of an amended complaint and lis pendens and the service of a supplemental summons. November thirteenth a summons, issued in the action brought by Jessie B. Crawford, was served on Frances Hart. Held, that Frances Hart was entitled to maintain the action brought by her; That the action brought by Jessie B. Crawford was not pending against the said Frances Hart or against Charles C. Hart until they, respectively, had been served with process; 'That the knowledge possessed by Charles C. Hart at the time he conveyed his interest in the premises in question to Frances Hart, of - the summons in the • action brought by. Jessie B. Crawford, did not constitutes legal impediment to the conveyance. ' Appeal by the defendants, James C. Hart and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 15th day of October, 1902, upon the decision of the court, rendered after a trial at the Westchester Special Term, directing a sale in partition. Edgar T. Brackett, for the appellants. . Albert C. Aubery, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : = This is an action for partition. October 21, 1901, Jessie B. Crawford, in an action for partition of the same premises, served a .summons on James C. Hart and ¡Nellie" Hart at Saratoga Springs, .and on October 22d she similarly served Eunice Hart at Ballston • Spa, and attempted. but failed to serve Charles C. .Hart, the sole "remaining defendant. On October 23, 1901, the summons served "on Eunice Hart was sent through the mails by a sister of Frances Hart to Frances, who received it on that day. On October 23d Frances Hart handed the summons to an attorney at law, and on that ¡day and thereafter, Charles C. Hart, knowing the contents of the summons, executed and delivered a deed to his daughter, the said Frances Hart, of a one-fourth interest of the premises in question, •which deed was recorded on October 23,1901. On October 25,1901, .Frances Hart, this plaintiff, by the said attorney, filed her summons and complaint and lis pendens in this action, recorded her lis pendens, and served the defendants Charles C. Hart, Kate M. Boyce, George W. Boyce, George Jewell, Mary Colyer and John .McCoy. On October 26th Frances Hart also served James C. Hart, Jessie B. Crawford and Frank Crawford between nine a. m. •and twelve m., at Saratoga Springs, ¡N. Y., and at one p. m. of .that day served Eunice Hart at Ballston Spa. On October 26th, • at five-thirty p, h., Jessie Crawford served her summons upon Charles C. Hart at Ballston Spa. On October 28, 1901, Jessie . Crawford filed her complaint and lis pendens, and recorded the latter instrument, On November 2, 1901, Frances Hart served her summons and complaint upon Nellie Hart, the remaining defendant in her action. On November 9th the Special Term of this court made an order ex parte amending the papers and proceedings in the action brought, by Jessie B. Crawford by adding as defendants Frances Hart, George W, Boyce, Kate M, Boyce, George Jewell, Mary Colyer and John McCoy, permitting the filing of an amended complaint and lis pendens, ordering a supplemental summons, and that all proceedings stand with the same force and effect as if the action had been originally brought against these defendants. On November 13, 1901, Frances Hart, George W, Boyce, Kate M. Boyce and John McCoy, and on November 14, 1901, George Jewell and Mary Colyer, were respectively served with a summons by Jessie B. Crawford, dated November 7, 1901. The sole question raised by the answer herein is whether there Was and now is another action pending in the Supreme Court in the county of Westchester, in which action Jessie B. Crawford was and is plaintiff, and in which this plaintiff and the other defendants named in the summons and complaint herein are defendants, being for the same cause set out in the complaint herein. The action of Jessie B. Crawford was not pending against Frances Hart, the plaintiff herein, or against Charles C. Hart, her father, until they were served with process respectively. (Burton Co. v. Cowan, 80 Hun, 392, citing Warner v. Warner, 6 Misc. Rep. 251; 57 N. Y. St. Repr. 764 ; Haynes v. Onderdonk, 5 T. & C. 176.) Frances Hart filed her summons and complaint and Us pendens, and recorded the latter instrument and also served some of the defendants in her action on October 25,1901. As she was not served in the action brought by Jessie B. Crawford until after November 9th, therefore no action was pending against her until that date and until after she had begun her action. Consequently the plea of prior action pending is not available against her. (Warner v. Warner, supra ; Middlebrook v. Travis, 68 Hun, 155 ; Utica Clothes Dryer Mfg. Co. v. Otis, 37 id. 301.) As to the ex parte order of the Special Term for the service of the supplemental summons and complaint upon Frances Hart, it is sufficient to say that in any event such action was only begun as to her when she was brought in by amendment. (Shaw v. Cock, 78 N. Y. 194.) On October 23, 1901, when Charles C. Hart transferred his interest to Frances Hart, whereby alone she was enabled to bring her action, there was no action pending against him, for he was not even served with the summons until October 26,1901, and not until October 28, 1901, did the plaintiff Jessie B. Crawford file her complaint and lis pendens and record the latter. The Trial Term has found that Charles C. Hart knew of the summons at the time he made his conveyance to Frances Hart. But, legally, that was no, impediment to him. For the summons, though outstanding, had not been served upon him, and, therefore, no action had been begun against him. Even proof of. the service of a summons has been held insufficient to establish the plea of another action pending. (Hoag v. Weston, 10 Civ.. Proc. Rep, 92; Phelps v, Gee, 29 Hun, 202.) It is undoubtedly true that the plea of a former suit pending is permitted to stop vexatious suits. Sparry’s Case (5 Coke, 61) was thus decided upon the maxim, “ Nemo debet bis vexari si oonstet curiae quod sit pro una et eadem causa.” (See, too, Porter v. Kingsbury, 77 N. Y. 164.) But in Porter’s case, Andeews, J., says that the plea must be one which, in its nature, related to the facts existing at the commencement of the action in which the plea was interposed. Undoubtedly, Jessie B. Crawford is vexed, and she has grounds for her plaint that Frances Hart has stolen a march upon her. The beginning, within a space, of four days, of separate suits by different plaintiffs for partition of the same realty may be only a coincidence. But when the second suitor had no interest in the premises until after she learned of the beginning of the first suit against some of the defendants by receiving the summons served upon one of them, wherein her father was named as a defendant, and when, after handing that summons to an attorney, her father, with knowledge of that summons, immediately conveys his interest to her, so that she is enabled to bring her suit, which she does forthwith by the said attorney, there are grounds for the inference, inasmuch as there are many defendants resident in different localities, that the second suitor has entered upon a race for the laurels of a plaintiff’s costs. But even if these facts went beyond inference, and as far as moral proof, we do not see our way clear under the issue and upon tlié facts found to halt this plaintiff in her course. The question presented is not of legal ethics, but of legal rights, and we have no alternative but to affirm the. judgment, which we do, without costs. The .present. attorney and counsel for the plaintiff submits an order which establishes that he was substituted for the original attorney on December 6, 1902. Present—Goodrich, P. J., Bartlett, Woodward, Hieschberg and Jenks, JJ. Interlocutory judgment affirmed, without costs.