Majority
p. 950HAY v. COLE. (Supreme Court, General Term, First Department. November 15, 1895.) Argued before FOLLETT and PARKER, JJ.
Headnote
Judgment—Motion to Set Aside—Pendency op an Action.Defendant cannot move to set aside a judgment at the same time an action by him for such purpose is pending in another court.
Appeal from special term, New York county.
Action by Thomas Hay against Pamelia B. Cole. A judgment entered by confession in favor of plaintiff was set aside on the motion of Frederick G. Schulze, and plaintiff appeals. Reversed.
James W. McElhinney, for appellant.
Andrew Shiland, for respondent.
It is disclosed by the record that the respondent brought an action in the court of common pleas against Thomas Hay to set aside said judgment on the same ground disclosed in the motion papers, which action was pending when this motion was heard and decided. This fact is conceded. The respondent had no right to prosecute concurrent remedies at the same time in different courts for the same relief. . Had he desired to obtain relief by motion he should have discontinued his action, and the pending action is a defense to this motion.
The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs and disbursements.