Opinion
January Term, 1902.
Cornelius J. Earley, for the appellant.
Hartley G. Pelletier [ Eugene H. Wilson with him on the brief], for the respondent.
The plaintiff sues to recover the price of desks and furniture sold by him to the defendant, a corporation. The answer alleges that prior to the commencement of this action the plaintiff commenced another action in the Supreme Court for the same subject-matter and cause of action set forth in the complaint, and that the complaint does not state facts sufficient to constitute a cause of action.
At the trial the plaintiff conceded the pendency of an action "between the same parties in the Supreme Court, Kings county, for replevin of goods, which goods I will concede also are the same goods for the sale of which this action was brought."
The Code of Civil Procedure, section 488, permits a demurrer to a complaint where it appears on the face of the complaint "That there is another action pending between the same parties for the same cause." The same defense may be set up in an answer where the causes of action are identical, but it is evident that an action in replevin for the goods is not an action for the same cause as an action for their price. In order to entitle a defendant to judgment, different evidence is required in the one case from that which is required in the other. A defendant in replevin might set up as a good defense a sale and delivery of the goods to him on credit, so that the title passed to him, and this being proved, he would be entitled to judgment. On the other hand, the same evidence in an action for the price of the goods would entitle the vendor to a judgment. (See Dawley v. Brown, 79 N.Y. 390.)
It follows that the causes of action are not identical, and the pendency of a prior action in replevin is no defense to an action for the price.
The judgment should be affirmed.
All concurred.
Judgment of the Municipal Court affirmed, with costs.