Indestructible Metal Products Co. v. Summergrade

Majority

p. 199

Indestructible Metal Products Co., Inc., Respondent, v. Joseph Summergrade, Appellant.

First Department,

June 3, 1921.

Headnote

Trial — motion in Supreme Court action for sum of money only to stay trial of action in Municipal Court of City of New York between same parties and involving same subject-matter — order which does not provide for undertaking under Code of Civil Procedure, § 611, is improper — order cannot be made in one action staying trial of another action — remedy is by action for injunction.

In an action in the Supreme Court in which the plaintiff demands a money judgment only and seeks no injunctive or other relief, an order granting plaintiff’s motion to stay the trial of an action brought by the defendant in the Municipal Court in the City of New York upon the ground that the present action was begun prior to the Municipal Court action and involves the same subject-matter must be reversed for two reasons: First, that it contains no provision requiring the plaintiff to execute an undertaking as provided in section 611 of the Code of Civil Procedure; and second, that the plaintiff cannot upon motion made in one action obtain an order staying the trial of another action; his remedy is to bring an action for an injunction.

Appeal by the defendant, Joseph Summergrade, 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 17th day of February, 1921, granting plaintiff’s motion to stay the trial of an action brought by the defendant in the Municipal Court of the City of New York Borough of Manhattan, First District, upon the ground that this, action was begun prior to the Municipal Court action and involved the same subject-matter.

Copal Mints of counsel [Israel N. Thurman, attorney], for the appellant.

Emanuel Sustick of counsel [Bernard Fliashniek, attorney], for the respondent.

This is an action at law in which the plaintiff demands a money judgment only and seeks no injunctive or other relief. Although the order appealed from provides that the “ defendant, his attorney or agent, be and they are hereby stayed from proceeding with the trial of the action commenced by the said defendant against the plaintiff herein in the Municipal Court, Borough of Manhattan, First District,” it is in effect an injunction granted in one action to stay the trial of another action between the same parties.

The order must be reversed for two reasons: First, that it contains no provision requiring the plaintiff to execute an undertaking as provided in section 611 of the Code of Civil Procedure; and secondly, that although a party seeking to stay a trial may move in the action sought to be stayed without giving security as required by section 611 of the Code, he cannot upon motion made in one action obtain an order staying the trial of another action. His remedy in the latter case is to bring an action for injunction. This has been held in numerous cases.

In Belasco Co. v. Klaw ( 98 App. Div. 74 ) the court said: “ The inherent power of the court to stay proceedings or control the trial of an action is one which must be exercised in the action itself, and where it js sought to enjoin parties from proceeding in another action such relief must be by injunction in an action where by formal prayer it is demanded.” (Code Civ. Proc. § 611.)

The opinion in Grammer v. Greenbaum ( 146 App. Div. 3 ) reads in part as follows: “ 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 be 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

p. 201

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.”

The order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Clarke, P. J., Dowling, Smith and Page, JJ., concur.

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

Cases cited

David Belasco Co. v. Klaw 98 App. Div. 74 N.Y. App. Div. 1904-11-18 p. 199