
    SUPREME COURT.
    Hornfager agt. Hornfager.
    Where it does not appear from the face of the complaint that another action is pending for the same cause, the objection should be stated as a defence in the answer (i 147), otherwise by demurrer (§ 144).
    And this applies to actions for partition.
    
      Columbia Special Term, October 1850.
    This was a motion by plaintiff to set aside the proceedings in an action for partition, commenced by the defendant, on the ground that an action for the partition of the same premises had been previously commenced by the plaintiff.
    J. C. Newkirk, for Plaintiff.
    
    A. L. Jordan, for Defendant.
    
   Parker, Justice.

Where it appears by the complaint that there is another action pending between the same parties for the same cause, the remedy is by demurrer {Code, § 144, sub. 3). When any of the matters enumerated in section 141 do not appear upon the face of the complaint, the objection may be taken by answer {Code, § 147). This is applicable to a suit brought by a defendant for partition. It is a suit between the same parties for the same cause.

The remedy is to set forth in the answer in the suit last commenced, the fact of the pendency of the first suit commenced.

Motion denied, but without costs.  