Frohman v. Sherman Square Hotel Co. — 120 N.Y.S. 900

Majority

p. 900

FROHMAN et al. v. SHERMAN SQUARE HOTEL CO. et al.

(Supreme Court, Appellate Division, First Department.

January 21, 1910.)

Headnote

Dismissal and Nonsuit (§ 60^[1] )—Want of Prosecution.

An action to set aside chattel mortgages made by a corporation will be dismissed for want of prosecution where, after action brought, a permanent receiver of the corporation was appointed in proceedings fpr voluntary dissolution, and the receiver sued to set aside the chattel mortgages for the benefit of all the creditors, and where plaintiff intended to await the result of the receiver’s action, in which all the relief he was entitled to might be awarded.

[Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. § 148; Dec. Dig. § 60.^[1] ]

Appeal from Special Term, New York County.

Action by Herman Frohman and another against the Sherman Square Hotel Company and others. From an order denying a motion to dismiss' the complaint for want of prosecution, defendants Charles Haines and others appeal'.

Reversed.

Argued before INGRAHAM, P. J., and LAUGHLIN, CLARICE, SCOTT, and MILLER, JJ.

Otis & Otis (A. Walker Otis, of counsel), for appellants.

Rose & Putzel (Norman P. S. Schloss, of counsel, and Benjamin G. Paskus, on the brief), for respondents.

This is an action in equity brought to set aside two chattel mortgages made by the defendant the Sherman Square Hotel

p. 901

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 is the same, and that this action is in the nature of a creditors’ 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 furnishes 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 pan 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 be reversed, with $10 costs, and the motion granted, with $10 costs to the appellant. All concur.