
    John Naylor and George Naylor, Trading as Naylor Brothers, Respondents, v. The Lorimer-Scholes Company, Appellant.
    Second Department,
    March 5, 1909.
    Defenses — prior action pending.
    The defense of another action pending between the same parties for the same cause is not available where the judgment in the prior action has been reversed because of jurisdictional defects.
    Appeal by the defendant, The Lorimer-Scholes Company, from a judgment ol the Municipal Court of the city' of New York in favor of the plaintiffs, rendered on the 29th day of May, 1908.
    
      
      Joseph L. Young, for the appellant.
    
      Benjamin Lesser, for the respondents.
   Woodward, J.:

This action is to recover the purchase price of certain goods sold and delivered to the defendant by the plaintiffs, and there is no question raised on the appeal as to the amount of the judgment or as to any ruling of the court, except upon the effect of a certain order which is set forth in the record. The defendant pleaded in its answer that there was an action pending between the same parties involving this same cause of action, and sought to establish this fact by introducing the record of an action between the parties which showed, by the order made, that the judgment of the Municipal Court had been appealed from, and that the judgment had been reversed on a'stipulation, owing to the fact that there had been no proper service on the defendant, and the trial court was without jurisdiction. There is nothing in the record, as it appears on this appeal, to show that the action referred to in the order related to the same subject-matter rs is here involved, but, if it did, the fact that the judgment was reversed because of a jurisdictional defect in the original action would seem to entirely negative the proposition that there was another action pending between the same parties. If, in the original motion, the trial court was without jurisdiction, there was no action pending at any time, and it would be a travesty on justice to permit such a defense as is here urged. ,

The judgment appealed from should be affirmed, with costs.

Jenks, Gaynor, Rich and Miller, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.  