Frohmann v. Sherman Square Hotel Co. — 136 A.D. 430

Majority

p. 430

Herman Frohmann and Harry Frohmann, Composing the Firm of H. Frohmann & Son, Respondents, v. Sherman Square Hotel Company and Others, Defendants, Impleaded with Charles Haines, Individually, and as Guardian of Merril L. Sarles, a Minor, and Others, Appellants.

First Department,

January 21, 1910.

Headnote

Practice — dismissal for want of prosecution.

A suit to set aside mortgages will be dismissed for want of prosecution where a permanent receiver of the defendant is bringing another action for the same purpose for the benefit of all the creditors, and the plaintiff in the original suit intends to await tire result of the receiver’s suit in which he will obtain all the relief to which he is entitled.

Appeal by the defendants, Charles Haines,'individually, and as guardian, etc., and others, from an order of the Supreme Court, made at the Hew York Special Term, bearing date the 8th day of • December, 1909, and entered in the office of the clerk of the county of Hew York denying the said defendants’ motion to dismiss the action for want of prosecution.

A. Walker Otis of counsel' [Otis <& Otis, attorneys], for the appellants.

Norman P. S. Schloss ■ of counsel [.Benjamin O. Paskus with him on the brief], Pose c& Putsel, attorneys, for the respondents.; '

This is an action in equity brought to set aside two chattel mortgages made by the" defendant, the Sherman Square Hotel Company, The motion to dismiss for want of prosecution complies with the technical requirements.

It appears that after this suit was instituted the Sherman Square Hotel Company filed a petition for. voluntary dissolution and an order was made appointing a permanent receiver. The receiver instituted an action against the defendants for the purpose of setting aside the said chattel mortgages. The affidavit in opposition sets .up that the ground of the two actions and the remedy demanded are the same, and that this action is in the nature of a

p. 431

creditor’s action for the benefit of all the creditors, and that the assets of the said company consist solely of said two mortgages.

It seems to the court that the reasons advanced for the purpose of justifying the order denying the motion to dismiss for failure to prosecute furnish sufficient reason for the granting of said motion. There can be no useful purpose in keeping alive two actions brought for the same purpose. As the plaintiffs affirmatively state that they intend to await the result of the receiver’s action, where they admit they can receive all of the relief they are entitled to, and where the complaint sets up the facts more in extenso than in the complaint at bar, there seems no reason for keeping this action alive.

The order appealed from should, therefore, he reversed, with ten dollars costs, and the motion granted, with ten dollars costs to the appellant.

Ingraham, P. J., Lahghlin, Scott and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.