
    Tamara Royal Jelly Products, Ltd., Respondent, v. Kubie’s Health Shop, Inc., Appellant.
    Supreme Court, Appellate Term, First Department,
    June 25, 1959.
    
      Joseph Lewis Simon for appellant.
    
      Jacob Bromberg for respondent.
   Per Curiam.

There is another action pending for the same relief. That action was begun by service of the summons (N. Y. City Mun. Ct. Code, § 18). The failure to file the summons stays the plaintiff from proceeding but does not terminate the action. Plaintiff’s relief is to discontinue the prior action or proceed under it.

The judgment should be reversed, with $10 costs, and motion for summary judgment denied.

Concur — Steueb, J. P., Hoestadteb and Aurelio, JJ.

Judgment reversed, etc.  