Opinion
June 19, 1950.
In an action to recover damages for claimed violation of plaintiff's possession of real property, order of the County Court of Westchester County, dated January 25, 1950, reversed on the law and the facts, with $10 costs and disbursements, the motion for an order dismissing the complaint in action No. 2, on the ground that there is another action pending between the same parties for the same relief, granted, without costs, and the motion pursuant to the notice of motion dated December 13, 1949, for an order requiring the plaintiff to serve an amended complaint in action No. 1, stating and numbering separately the causes of action contained in that complaint which apply to the defendant City of White Plains, granted, with $10 costs. The notice of abandonment served by the plaintiff was not effectual to discontinue the first action. Kortwellyeszsy v. Manhattan Cooperage Co. ( 162 App. Div. 285) does not hold to the contrary. Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.