
    Solomon Rosenblatt, Respondent, v. Bertsch A. Lesser, Appellant.
    (Supreme Court, Appellate Term,
    June, 1908.)
    Another action pending — Identity of causes of action—Not implied from identity of subject-matter.
    A stipulation that in a prior action between the same parties the subject-matter of a counterclaim in the present action was made the subject-matter of complaint, does not necessarily imply that the cause of action in the prior action was the same as the cause of action constituting the counterclaim.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of blew York, ninth district, borough of Manhattan.
    Max D. Steuer, for appellant.
    Feltenstein & Rosenstein, for respondent.
   Per Curiam.

This action was brought upon a promissory note made by the defendant, and the defense was payment and counterclaim. The plaintiff introduced proof establishing a prima facie case and rested. The record discloses the following as having occurred during the introduction of defendant’s testimony: “ Plaintiff’s counsel: It is conceded there is another action pending, wherein the present defendant is plaintiff and the present plaintiff is defendant, in the City Court of the city of Hew York, brought prior to the commencement of this action, wherein the subject-matter of the alleged counterclaim sought to be interposed in this action was made the subject-matter of complaint in the other action, and that the answer was served and issue joined and such action is now actually pending in the City Court of Hew York. How, I object to the proof of the counterclaim on the ground of the previous action pending.” The defendant was not allowed to introduce proof of the counterclaim, the trial court holding that it was for the same cause of action as that pending in the City Court. The appellant claims that this ruling was erroneous, and that the judgment should be reversed. It does not necessarily follow that the words “same subject matter” imply “same cause of action.” We are, therefore, not able to say from the language of the stipulation that the cause of action set forth in the complaint in the City Court action is the same cause of action as that which constitutes the counterclaim herein.

The record must be returned to the files of the court below to be amended by annexing thereto the complaint in the City Court action.

Present: Gildersleeve, Giegerich and Greenbaum, JJ.

When so amended the case may be resubmitted for decision.  