Grammer v. Greenbaum — 146 A.D. 3

Majority

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Richard Grammer, Respondent, v. Nathan Greenbaum, as Receiver, etc., of the National Standard Brewing Company, Appellant, Impleaded with the National Standard Brewing Company, Defendant.

First Department,

July 7, 1911.

Headnote

Practice — stay of proceedings — motion in one action to stay proceedings in another..

A motion to stay an action cannot be made in another action, but only in the action sought, to be stayed. Where it is sought to enjoin parties from proceeding, in another action the relief must be obtained by injunction and such relief must be demanded in the complaint.

Thus, an action in the City Court, of New York cannot be stayed on motion in another suit brought by the defendant in the Supreme Court to set-aside the agreement which is the subject-matter of the prior action, nor can the Supreme Court enjoin the prosecution .of the other action where no such relief is demanded in the complaint.

Appeal by the defendant, Nathan Greenbaum, as receiver, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of April, 1911, staying the prosecution of an action brought in the City Court of the city of New York.

Gustav Gunkel, for the appellant.

Joseph H. Kohan, for the respondent.

In September, 1910, the defendant Greenbaum, as - receiver ox' the National Standard Brewing Company, commenced an

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action in the City Court of the city of New York against the plaintiff in this action to recover from him the sum of $1,200, under an agreement to purchase a certain number of shares of the capital stock of the National Standard Brewing Company. The action was tried and in October following, judgment rendered in favor of Greenbaum, as receiver, for the. amount claimed. An appeal was taken to the Appellate Term and while the same was pending this action was commenced for the purpose of setting aside the agreement upon which the judgment in the City Court action had been obtained, the plaintiff alleging that such agreement was obtained by fraud practiced upon him, which entitled him to a rescission, the judgment demanded. The Appellate Term reversed the judgment of the City Court and ordered a new trial. (Greenbaum v. Grammer, 71 Misc. Rep. 433 .) Thereupon the plaintiff moved in this action to stay the receiver from prosecuting the action in the City Court. The motion was granted and the appeal is from that order.

This court has several times said that the trial of an action cannot be stayed in this Way. The power of- the court to stay proceedings or control the trial of an action is one which must he exercised in the action itself (Raymore Realty Co. v. Pfotenhauer-Nesbit Co., 139 App. Div. 126 ; North Central Realty Co. v. Blackman, 145 id. 199 ), -and where it is sought to enjoin parties from proceeding in another action, such relief must be by ^injunction in an action where such relief is demanded in the complaint. (Belasco Co. v. Klaw, 98 App. Div. 74 ; Webster v. Columbian National Life Ins. Co., 131 id. 837; affd., 196 N. Y. 523 .)

Under the authorities cited the court could not, by an order in this action, stay the trial of the City Court action. Nor could it enjoin the prosecution of that action by an order in this, because no such relief is demanded in the complaint.

It follow's that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., Clarke, ' Scott and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, arid motion denied, with ten dollars costs. 1

Cases cited

David Belasco Co. v. Klaw 98 App. Div. 74 N.Y. App. Div. 1904-11-18 p. 4