Gardner v. Clark (21 N.Y. 399, 1860)

Selden, J.

It is quite certain, that the judge at the circuit erred, in supposing that, by including a defence upon the merits in the same answer with the defence of a former suit pending for the same cause of action, the defendant had waived the latter defence. A doubt at one time existed, whether the Code had abrogated the rule of the common law, which required matters in abatement to be first pleaded and disposed of, before pleading in bar to the action; and there were, in the supreme court, conflicting decisions upon the subject. The question, however, came before this court in the case of Sweet v. Tuttle (14.N. Y. 465), where it was held, that the Code provided for but a single answer, in which the defendant is required to include every defence upon which he relies to defeat the action. This decision must be considered as settling the question.

The only serious inconvenience suggested, as likely to result from this construction of the Code is, that when an answer embraces both a defence in abatement and in bar, if the jury find a general verdict, it will be impossible to determine whether the judgment rendered upon the verdict should operate as a bar to another suit for the same cause of action or not. It would, however, be the duty of the judge at the circuit, in such a case, to distinguish between the several defences, in submitting the cause to the jury, and require them to find separately upon them. In that way, it is probable, that the - confusion which might otherwise result, may, in most cases, be avoided. At all events, the Code admits, I think, .of' no other construction.

The judge, therefore, was not justified in rejecting the evidence offered at 'the trial to show the pendency of a former suit *for the same cause of action, upon • . ’ r the ground that this branch of the defence had been waived, by including in the answer a defence upon the merits. If, howóver, for any other reason, the evi-» dence was inadmissible, its exclusion should be sustained. The judge gave another reason for rejecting it, viz., that “ such former action pending was no defence to this action.”

It is argued, in support of this ground for excluding the evidence, that, although the pendency of the suit commenced by Adison Gardner would have been a good answer to another suit brought by him, while he continued to own the demand, it is, nevertheless, no answer to a suit brought in the name of the assignee? after the assignment to her. This would, I think, be a question of some difficulty, if it were really presented; but, in the view I take of the case, it does not become necessary to pass upon it.

The extent of the allegation in the answer on the subject of a prior suit is, that a copias ad respondendum was issued “ in a plea therein mentioned,” and that the-defendant was arrested upon the writ and held to answer “ in a. plea as aforesaid,” and-that, by this writ and taking, a former suit at law was commenced for “ the same identical cause of action,”