De La Vergne Machine Co. v. New York & Brooklyn Brewing Co.

Majority

p. 649

De La Vergne Machine Company, Appellant, v. New York and Brooklyn Brewing Company, Respondent, Impleaded with Williamsburgh Trust Company, Defendant.

Second Department,

April 24, 1908.

Headnote

Practice—stay—other action pending.

An action to foreclose a mechanic’s lien will be stayed pending the determination of a prior action brought by the defendant against the plaintiff to recover for a breach, of the building contract when the issues in the two actions are the same. This, although the plaintiff in foreclosure has brought in an additional defendant, mortgagee of the lands, and asks that his lien be decreed to be prior to the mortgage, for that issue is merely incidental.

Appeal by the plaintiff, the De La Vergne Machine Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 4th day of Hovember, 1907, directing that all proceedings in this action be stayed until the entry of judgment in an

p. 650

action pending in the Supreme Court, brought by the Mew York and Brooklyn Brewing Company against the De La Yergne Machine Company.

Faneuil D. S. Bethune, for the appellant.

Thaddeus D. Kenneson, for the respondent.

This is an action to foreclose the plaintiff’s mechanic’s lien on the defendant’s land for work done and material furnished under a written contract between the parties for the erection of an ice-making plant on the defendant’s land by the plaintiff for $8,500, of which $2,000 was paid. Before this action was begun this defendant brought an action against this plaintiff for damages for the breach of the said contract in the sum of $20,000, and issue was joined in it first. In each action the defendant alleges in defense the same matter which it pleads in the other as plaintiff. The court below had the discretion and the right in managing its calendars and regulating its order of business to put off or stay the trial of the second action —- the one now here — until the first should be tried, and it was entirely orderly to do so, for if this defendant should prevail in his said action for damages against this plaintiff for failure to fulfill its contract, then this plaintiff could not recover in its action to foreclose its lien, the issue of performance being common and controlling to each action. The judgment would be res adfludioata of the lien action. It is a fact that there is an additional party to this action, but only because the plaintiff seeks to have its judgment of foreclosure made prior to a mortgage held by such defendant on the property. But that question is only incidental and will nevei be reached if judgment goes against this plaintiff in the said first action. ■

There is no narrow technical rule that the issues and parties must be identical in all respects in each in order that the trial of one action may be stayed or postponed until after the trial of the other. The law looks to the substance of things, and if, as here, the issue in the action first brought is such that if the plaintiff prevails the judgment will require a dismissal of the other, it is orderly to try the first action first. An additional reason why the first one here

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should have precedence is that it is a common law action and therefore secures a trial by jury of the controlling issue of fact of each action. The rule in respect to postponing a cause until after the trial of another is one of convenience and order in practice (Post v. Banks, 67 App. Div. 187 ), and not always one of strict right as is the case in pleas of former adjudication, and therefore the cases cited on this latter head while they may be instructive by analogy are not controlling.

The order should be affirmed.

Woodward, Jenks, Hooker and Rich, JJ., concurred.

Orden affirmed, with ten dollars costs and disbursements.

Cases cited

Post v. Banks 67 App. Div. 187 N.Y. App. Div. 1901-12-23 p. 651