
    Keystone O’terwear, Co., Inc., Appellant, v. H. Feingersch et al., Doing Business as Carlita Sportswear Co., Defendants, and Carlita Sportswear Co., Inc., Respondent.
    Supreme Court, Appellate Term, First Department,
    June 4, 1959.
    
      
      Benjamin A. Miller for appellant.
    
      Louis Schultz for respondent appearing specially.
   Per Curiam.

The service of the summons and complaint and writ of replevin, which include the corporate defendant as a party defendant, upon defendant H. Feingersch, individually and as a copartner of Carlita Sportswear Co., and as managing agent of Carlita Sportswear Co., Inc., constitutes the commencement of another action, and although the individual defendant may plead as a defense the pendency of another action, this does not alter the fact that a new action was commenced.

The judgment and order should be reversed, with $10 costs, and service of the summons and complaint and execution of the writ sustained, with leave to defendants to answer and defend on the merits.

Concur — Hoestadter, J. P., Hecht and Aurelio, JJ.

Judgment and order reversed, etc.  