
    ELBRIDGE G. PHELPS, Respondent, v. HIRAM GEE, Appellant.
    
      Pendency of a former action for the same cause — when the object of the first action, in which the summons only has been served, cannot be proved by panol evidence.
    
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon a case and exceptions, and upon the ground of newly discovered evidence.
    The defendant pleaded, among other defenses, the pendency of another suit for the same cause of action. Upon the trial he offered to prove by the plaintiff that, prior to the commencement of this action, he had commenced another action against the defendant upon the same cause of action, and that such former action was still pending undetermined.
    The court at General Term said : “ The defendant, on the trial, proved that the plaintiff, about August .twelfth, commenced an action against the defendant. He offered to show that it was for the same cause with the present. It was objected that he could not prove that in this manner. It was admitted that the summons was served and a notice of retainer, biit that no complaint had ever been served. And the defendant offered to prove for what that action was brought. The court said that all which it would be possible to prove was what the action was designed for, and excluded the evidence.
    “We think the court decided correctly. It is very true that parol evidence may be given for the purpose of showing what the actual controversy was in a former action. (Doty v. Brown, é N. Y., 71.) But the difficulty here is that the subject of controversy in the former action was still uncertain. The plaintiff in that action might serve a complaint upon any cause of action consistent with the summons. Nor was this difficulty obviated by the defendant’s question, whether he had any other cause of action than that now before the court. Because the plaintiff could serve a complaint setting forth a fictitious cause of action. And it could not be averred that the former action was certainly for such a cause until the complaint had been served.”
    
      'Merritt King, for the appellant.
    
      Smith Brothers, for the respondent.
   Opinion by

Learned, P. J.

Present — Learned, P. J., Boardman and Bookes, JJ.

Judgment and order affirmed, with costs.  