Carpenter v. Keating — 10 Abb. Pr. 223

Majority

p. 223

CARPENTER against KEATING.

New York Common Pleas;

General Term, December, 1870.

Headnote

Cross Aotiox.—Ixjtjxctiox.—Security ox Ixjuxctiox to Stay Peoceedixgs.

As a defendant can now, as a general rule, interpose any defense he may have, whether legal or equitable, and thus obtain, by answer, motion, or otherwise, all the relief, in the original suit, to which he would be entitled if he brought a separate action, it is neither necessary nor allowable to bring an action, nor will an injunction be granted, merely for the purpose of restraining the proceeedings in another action, both being in the same court^[1]

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Where such an injunction was granted, but no bond was given or money deposited, as required by 3 Be». Stat., 5 ed., p. 370,—Held, on appeal, that even if the plaintiff had been entitled to the relief • he sought, the failure to comply with the statute was fatal to the order of injunction appealed from.

Appeal from, an order.

This action was brought by William H. Carpenter and William H. Adams, Jr., against Francis T. ¿eating and Henry A. Keating.

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It appeared that some time in the year 1868 an action was commenced in the supreme court by one Frederick Daggett, against the defendants in this case, which action was superseded by an agreement to arbitrate the

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matters in difference between the parties; judgment upon any award made under said submission to arbitrate to be entered in the court in which the action was originally commenced.

The arbitrators made their award against said Daggett, and a motion was subsequently made in the supreme court to set the same aside for fraud and collusion between some of the arbitrators and the successful parties on said award, the defendants in this action.

The motion was granted at special term; but on appeal to the general term the order of the special term was reversed, whereupon said Daggett appealed to the court of appeals, the plaintiffs in this case becoming sureties on the undertaking.

The court of appeals, on September 28, 1869, dismissed the appeal, with costs, on the ground that the proper remedy to bring the matter up for review in that tribunal was by writ of error.

Thereupon the defendants herein perfected a judgment against said Daggett, and on or about October 7, 1869, commenced an action in this court against the plaintiffs herein as sureties on the undertaking above mentioned, to recover the sum of sixteen hundred and ■sixteen dollars and twenty-four cents, being the amount ■of the judgment obtained by them against said Daggett at the general term of the supreme court, and the further sum of one hundred and one dollars and ninety-six

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cents costs, awarded to them on the dismissal of the appeal by the court of appeals.

At or about the same time the said Daggett sued out a writ of error from the supreme court to the court of appeals, and filed a bond (which did not, however, secure the costs awarded to the defendants herein on dismissal of the appeal by the court of appeals), on which the plaintiffs in this action are also sureties, and obtained a stay of proceedings until the determination of said writ, which is still pending.

On October 14,1869, the plaintiffs herein commenced this action to restrain, by a perpetual injunction, the other action in this court, brought against them as sureties on the undertaking on appeal, by the defendants in this case. A preliminary injunction was granted in this-last named action, and on a motion to continue the same pendente lite an order was made by Judge Brady that the same be continued on payment of the costs awarded to the defendants herein on the appeal to the court of appeals, and the costs of the action sought to be restrained.

On December 22, 1869, the answer which had been interposed by these plaintiffs in the action sought to be restrained was overruled on demurrer, but the entry of judgment thereon was stayed for .ten days; and if within that time these plaintiffs paid the costs as directed by Judge Brady, and the costs on the demurrer, they were to be at liberty to apply either for a continuance of the stay in that action, or the injunction in this, as might be deemed advisable. Said costs having been paid, an application was made by these plaintiffs for a continuance of the injunction herein, and on January 26, 1870, an order was made by Judge Van Brunt, enjoining and restraining the defendants in this action from further proceeding in the aforesaid other action in which they are plaintiffs, and the plaintiffs herein are defendants, until the final judgment and decree in this

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suit. ]STo bond was executed or money deposited in court on the issuing of this order. From this last named order this appeal was taken.

P. H. (Planning, for defendants and appellants.

A. L. Banger, for plaintiffs and respondents.

This action was brought for the purpose of enjoining and restraining proceedings in another action also pending in this court. As a defendant can now, as a general rule, interpose any defense he may have, whether it be legal or equitable, and thus obtain by answer, motion, or otherwise, all the relief in the original suits to which he would be entitled if he brought a separate action, it is no longer .either necessary, or allowable to bring an action, nor will an injunction be granted, merely for the purpose of restraining the proceedings in another action, both being in the same court (Harman v. Remsen, 23 How. Pr., 174 ; Minor v. Webb, 10 Abb. Pr., 284 ; Bowers v. Tallmadge, 16 How. Pr., 325 ; Arndt v. Williams, Id., 244; Hunt v. Farmers’ Loan & Trust Co., 8 Id., 416).

It is true that injunctions are sometimes allowed for the purpose of preventing a multiplicity of suits. But that is not this case. On the contrary, the very bringing of this action was a.multiplication of suits.

But even if the plaintiff were entitled to the relief he seeks in this suit, the fact that no bond was given or money deposited with the court, as required by the Revised Statutes (3 Rev. Stat., 5 ed., p. 270), is fatal to the order appealed from.

Those provisions of the Revised Statutes have not been abrogated or altered by the Code (Cook v. Dickerson, 2 Sandf., 691 ), and are, therefore, still in force, and a compliance therewith is necessary as a condition precedent to the issuing of an injunction staying proceed

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ings in an action at law. The plaintiffs herein may perhaps be entitled to a stay of proceedings in the other action in which they are the defendants, or upon any judgment therein against them, until a decision be rendered by the court of appeals on the writ of error now pending in that court; but it would seem that this action cannot be sustained, and that, in any event, the order appealed from must be reversed.

Chables P. Daly, Ch. J., concurred.

Order reversed.