
    Max Goldstein, Appellant, v. Leo Loeb et al., Respondents.
    (Supreme Court, Appellate Term,
    July, 1897.)
    Another action pending — Discontinuance and abatement.
    The plea of another action pending for the same cause of action Is not supported when it appears that, before the present suit was begun in a District Court of the city of New York, a former action in the same court,: in which the-summons was seryed, abated, or became discontinued because, owing to the failure of the plaintiff’s attorney to pay the trial fee, the clerk did not put the case on the calendar and it was never called for trial.'
    Appeal by plaintiff from judgment of the Second District Court.
    A. H. Sarasohn, for appellant.
    Wertheimer & Duffy, for respondents.
   McAdam, J.

The action was for wages and money lent; and the defense -relied upon the -pendency of a prior action for the same cause.

To sustain their, plea the defendants offered in evidence a summons issued from the Fifth District Court, November 27, 1896, returnable December 8, 1896, in an action by the plaintiff against the defendants herein. Indorsed on the summons is an affidavit proving its service on one of the defendants; and upon the face of the process appear these words: Plaintiff appeared. A. II. '.Sarasohn. Complaint, wages and money laid out and expended.”

It appears that on the return day of said summons the plaintiff failed to appear, the process server not having notified Mr. Sarasohn that service had been effected. The defendants appeared by attor: ney on the return day; but the trial, fee not haying been paid the cause was not on the calendar, and wás not called; whereupon the defendants’ attorney departed from the courthouse, and the action was allowed to abate; that is, to cease, terminate, or come to an end prematurely. Bouvier L. Dic.

The defendants might if they had so desired have presented the copy of the summons to the justice and had the action called and dismissed, with costs. Risk v. Uffelman, 7 Misc. Rep. 133. They did not choose to adopt that course, but the action terminated as effectually as if they had done so.

Section. 1366 of the Consolidation Act provides that “If the' plaintiff fail to appear at the return of the summons and make his complaint, the action must be dismissed.” There is no power to continue it by adjournment or otherwise. Cow. Tr., § 1227 (Kingsley’s ed.). As the defendants did not elect to have the action dismissed the plaintiff’s neglect to. keep the case properly before the court amounted to a discontinuance thereof. " See 5 Am. & Eng. Ency. of L. 674; also Gold v. Bissell, 1 Wend. 213. This is the rule applicable to inferior jurisdictions. In contemplation of law, therefore, the action, the pendency of which is pleaded in bar, effectually terminated, and was unavailing as a defense in abatement of the present suit, which was commenced by new process, issued December 24, 1896, over two weeks thereafter.

The justice decided, however,' that the former action was then pending, and was for that reason a bar to this one, and rendered judgment dismissing the plaintiff’s complaint, with costs. This was error, for which the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Daly, P. J., and Bischoff, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.  