(dissenting):
At common law, the plea of a former suit pending for the same cause of action, always contained an averment that the parties were the same in both actions. (2 Chitty’s Plead., 19.) Where it appears by the complaint upon its face, that theré is another action pending between the same parties for the same cause, it is a good ground of demurrer under section 144 of the Code, and if the fact or matter enumerated in said section as a ground of demurrer does not appear upon the face of the complaint, the objection' under section 147 may be taken by answer. Under the Code, as at common law, the answer setting up the pendency of a former suit in bar, or abatement, must allege that the parties are the same as well as the cause of action. (Auburn City Bank v. Leonard, 20 How., 196; Kelsey v. Ward, 16 Abb., 98.) This action is against Brown as a sole defendant. The former suit, if reference is had to the suit in equity, was against numerous defendants, and if reference is had to the action after the amendment, it was then against two defendants, Kox and Brown. Whether the former action be considered an action in equity or law, after the amendment, it is quite clear that the plaintiff had no cause of action in either form. He could not avoid his own deed for fraud in equity, and the legal title was clearly in Culver, and he must necessarily have been nonsuited at the trial, and such judgment would not have been a bar to another action as res adjudieata, and for the same reason the plea of a former suit pending is not good. (Stowell v. Chamberlain, 60 N. Y., 272.) The question whether the causes of action are the same is *468whether the same evidence will support both actions. (Id., 277; Rice v. King, 7 Johns., 19; Miller v. Manice, 6 Hill, 114; Johnson v. Smith, 8 Johns., 383.) The deed, executed by Culver to the plaintiff, I do not think was void for champerty. At the time of its execution the land was not in the actual possession of a person claiming under a title adverse to that of the grantor. The defendant was then in possession as tenant of said plaintiff under a voluntary lease. It is true he was subsequently restored to the possession, buf his voluntary act of taking a lease from the plaintiff upon the execution of the habere facias was not thereby rendered invalid, so as to convert his possession under the lease into adverse possession, while he held under it, so as to make void the'deed from Culver to the plaintiff, executed while such lease was in full force.
Present — MulliN, P. J., Smith and Talcott, JJ.Judgment affirmed.