Opinion
August 13, 1959
Appeal from an order of the Supreme Court, Albany County which granted defendant's motion under subdivision 3 of rule 107 of the Rules of Civil Practice to dismiss the complaint. On December 21, 1956 the defendant-respondent began an action in the City Court of Albany against the plaintiff-appellant. The appellant in his answer set forth a counterclaim for malicious prosecution and demanded judgment of $10,000. Thereafter the appellant instituted this action in the Supreme Court, Albany County setting forth the same cause of action for malicious prosecution. The respondent moved to dismiss this action on the ground that there was another action pending between the same parties for the same cause. The appellant opposed this motion by asserting that the City Court of Albany had no jurisdiction over the counterclaim which he had interposed there. The court below granted the motion stating that although the Albany City Court might not have jurisdiction of the counterclaim interposed there, no such determination had been made and the action was therefore still pending. Pursuant to subdivision 10 of section 2 of the Albany City Court Act that court has no jurisdiction over an action for malicious prosecution. If a motion to dismiss a complaint based on another action pending between the parties for the same cause is to be sustained it must appear that full relief may be obtained in the other action ( National Fire Ins. Co. v. Hughes, 189 N.Y. 84, 87). The appellant could not obtain any relief on his counterclaim in the City Court of Albany in that any judgment rendered by a court which lacks jurisdiction is void and unavailable for any purpose ( Kamp v. Kamp, 59 N.Y. 212). A motion to dismiss a complaint under subdivision 3 of rule 107 of the Rules of Civil Practice should be denied when it appears that the other action alleged to be pending is in a court which does not have jurisdiction over its subject matter (cf. 2 Carmody-Wait, New York Practice, p. 150). Order reversed on the law and motion denied, with $10 costs. Bergan, J.P., Coon, Gibson, Herlihy and Reynolds, JJ., concur.