Nason Manufacturing Co. v. Rankin Ice Manufacturing Co. — 1 N.Y. City Ct. Rep. 455

Majority

p. 455

New York Marine C o urt. Special Term

November, 1883.

THE NASON MANUFACTURING COMPANY v. THE RANKIN ICE MANUFACTURING COMPANY.

Headnote

The pendency of a suit in a foreign court by the same plaintiff against the same defendant, for the same cause of action, is no stay or bar to a new suit instituted here, and this although pioperty has been attached in the foreign jurisdiction. But our courts may restrain our own citizens from proceeding in courts of a foreign jurisdiction pending proceedings in our courts.^[1]

The defendant moves under section 1778 of the Code of Civil Procedure, for an order extending the time to answer. The action is upon two promissory notes

p. 456

made by said corporation, and the defense proposed is that an action for the same cause has been commenced by the plaintiff against the same defendant in the city of Baltimore, Maryland, in which action an attachment has been levied upon property of the said corporation, more than sufficent in amount to satisfy the whole claim of the plaintiff ; that said action was commenced before this, and that it is still pending in a court of competent jurisdiction. The question presented is whether these facts constitute a defense.

Hamilton & Lyon, for the motion.

A. S. Sullivan, opposed.

The pendency of a suit in a foreign court by the same plaintiff against the same defendant, for the same cause of action, is no stay or bar to a new suit instituted here (Bowne v. Joy, 9 Johns. 221 ; Walsh v. Durkin, 12 Id. 99 ; 20 ind. 457 ; 2 Curtis C. Ct. 559). There is no hardship in this, because the defendant cannot be obliged to pay the money twice, since payment in the one suit may be pleaded puis darrein continuance to the other; and if the two suits proceed, pari passu, to judgment and execution, a satisfaction of either judgment may be shown, audita querela, or otherwise, in discharge of the other (Bowne v. Joy, supra).

This being the settled rule of law, 1 fail to discover how the circumstance that the creditor has secured his debt by attachment of property in the foreign jurisdiction can alter its effect. The security furnished by the mere service of such an attachment, in a legal sense, neither extinguishes nor diminishes the debt, and may not result in producing a satisfaction of the judgment ultimately recovered. The attachment itself may be vacated, superseded or otherwise discharged,

p. 457

and the security released by proceedings had in the foreign jurisdiction, all without reference to any comity, credit or respect which may have been given to it in proceedings pending here. The decision in Lawrence v. Remington ( 6 Biss. 44 ) is not based on solid legal grounds nor on logical reasoning, and cannot be followed.

The matters proposed to be pleaded do not constitute a legal defense, and the motion for leave to plead them will therefore be denied.

Cases cited

Bowne v. Joy 9 Johns. 221 N.Y. Sup. Ct. p. 456