
    Emanuel Kind, Respondent, v. Alexander S. Bacon, Appellant.
    Appeal from judgment entered on a verdict directed by the court.
    Nichols & Bacon, for appellant.
    Menken Bros., for respondent.
   Hascall, J.

The action is brought to enforce an alleged pro rata liability of the defendant as an underwriter on a Lloyds insurance policy.

The complaint neither alleges, nor do the proofs show, how many individual underwriters there were to be affected, nor what the proportion was, but claims that defendant’s liability amounted to $97.14. The answer denies most of the allegations and pleads another action, pending in favor of one Cuff, to recover upon the same policy against the same defendant, and under the same allegations. The policy of insurance was not offered in evidence. Plaintiff alleged an assignment to him of the cause of action, but offered no proof thereof —• production of a judgment roll, in an action against the attorneys in fact named in the policy, containing the complaint which alleged an assignment of the entire claim to Cuff, under a policy the subject of the action, was not proof of an assignment of the claim to Kind against the appellant Bacon. It is a good defense that the case of Cuff v. Bacon was still pending, and the exception duly protected the defendant on appeal. The plaintiff quite failed to make out his case, and, while it was error not to let defendant go to the jury, we proceed further and hold the defendant entitled to even greater relief on the record. We think that the Supreme Court had no right nor power to assume in one action to order the discontinuance of another, without notice to or consent by the party defendant herein.

The judgment appealed from should be reversed, with costs of appeal and the complaint dismissed1 with costs of the action.

Fitzsimons, Oh. J., and O’Dwyer, J., concur.

Judgment reversed, with costs of appeal and complaint dismissed, with costs of action.  