Plaintiff sued for a partition of realty and made A. Doerfler one of the defendants. A. Doerfler brought a similar action and made, among others, plaintiff a defendant. The plaintiff appeals from an order of the Special Term that stays her action until final decree in the latter action; But it appears that the summons and complaint in A. Doerfler’s action were not served upon the plaintiff as a defendant therein.until five days after she began her action, and then with such procedure that the service was not complete until at least ten days after the *579initiation of service. (Code Civ. Proc. § 443.) As there was then not another action pending against plaintiff when she began her action, the stay should not have been ordered upon the ground of another action pending. (Hart v. Hart, 86 App. Div. 236; Warner v. Warner, 6 Misc. Rep. 249, per Rumsey, J.; 2 Fiero Special Actions, 1591, 1592; Nichols N. Y. Pr. 46.)
In A. Doerfler’s action, the said plaintiff subsequently as a "defendant pleaded inter alia another action pending, and the Special Term on motion struck out that plea. This order is also the subject of an appeal. We think that-the disposition thereof was orderly and proper at the time. For it is the priority, not the mere pendency, that sanctions such a plea in abatement (1 Ency. Pl. & Pr. 752), and when the Special Term came to the consideration of the motion it appeared that the same court had theretofore stayed the action thus pleaded until the final decree in the action then before it. Any other disposition of the motion at that time would have involved the review of an adjudication of a court of co-ordinate jurisdiction. But inasmuch as the first adjudication is now pronounced error, the appellant would be entitled to a rehearing and a denial thereupon of the said order.
The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with costs.
Carr, Stapleton, Mills and Putnam, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.