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Weinberg v. Weinberg

14 N.Y.S. 352 Court N.Y. Gen. Term Decision date 1891-05-11 English

Delivered by Pratt, J.

Contents

Majority

p. 352
Weinberg et al. v. Weinberg et al.
(Supreme Court, General Term, Second Department.
May 11, 1891.)

Headnote

Action—Election.
Where defendants brought a separate action, in another county, on a claim which they might have set up as a counter-claim in the action against them, and plaintiffs interpose therein as a counter-claim the facts on which their action is based, plaintiffs will not be required to elect in which action they-will try their claim.
Appeal from special term, Kings county.
Action by Rachel Weinberg and Isidor Weinberg against Philip Weinberg and Louis Clark, Jr. Defendants’ motion that plaintiffs be required to elect whether they will try their claim in the action brought by them, or in an action brought by defendants against plaintiffs, in which plaintiffs set up their claim as a counter-claim, was denied, and defendants appeal.
Argued before Barnard, P. J., and Dykman and Pratt, JJ.
Ferdinand Kurzman, for appellants. Charles E. Burke, for respondents.

This action was begun November 12, 1890. Defendants have a claim against plaintiffs, which they might have pleaded as a counter-claim. They preferred to bring an independent action in another county. In that action these plaintiffs interpose as a counter-claim the facts on which this action is based. A motion 'is now made that the plaintiffs be required to elect in which action their claim be tried, and that they be stayed from proceeding in the other action. Various answers to the motion suggest themselves. The causes of action in dispute between the parties are in no way connected, and it is very doubtful whether justice will be promoted by trying all the claims in-one action. Moreover, the plaintiffs were entirely within their rights in beginning this action; and, if defendants desired to try all the claims together, they should have interposed their demand in this action. Not having done so, they have lost their right. It is by their own choice that two actions are pending; and for the inconveniences, if any, resulting, they are alone responsible. The motion appealed from must be affirmed, with $10 costs and disbursements.