Jaffray v. Hunter — 40 N.Y.S. 932

Majority

p. 932

(8 App. Div. 315)

JAFFRAY et al. v. HUNTER.

(Supreme Court, Appellate Division, First Department.

July 31, 1896.)

Headnote

Practice in Civil Cases—Stay Pending Action in Another State.

An action brought in New York will not be stayed on the ground that the same matter is in litigation between the same parties in another state, where it appears that the action was begun in such other state to forestall the action in New York, and to compel plaintiffs, who were receivers appointed by the courts of New York, to litigate in a foreign jurisdiction.

Appeal from special term, New York county.

Action by Howard S. Jaffray and others, as receivers of E. S. Jaffray & Co., against Edward Hunter, on two promissory notes of defendant, for $2,500 each, payable to plaintiffs. From an order denying a motion to stay proceedings until the determination of an equity suit brought by defendant against plaintiffs and others, in the state of Tennessee, to restrain the collection of said notes, defendant appeals. Affirmed.

Argued before BARRETT, RUMSEY, PATTERSON, and INGRAHAM, JJ.

S. L. Samuels, for appellant.

David Willcox, for respondents.

It is altogether within, the discretion of the court to stay proceedings in an action here, when the same subject-matter is in litigation between the same parties in the courts of another state or country. Many cases may arise in which that course should be pursued, particularly where the foreign court first acquired jurisdiction. But in this- case no sufficient or satisfactory reason was given for staying the common-law action here until the suit in equity can be disposed of in Tennessee. The two notes sued oh were given by the defendant directly to the plaintiffs, as receivers, and they formed part of the consideration paid on the settlement of transactions had between the defendant and. the receivers of the co-partnership of Jaffray & Co. The suit in Tennessee was brought in anticipation of the maturity of those notes, and upon allegations of the failure of consideration. That it was begun to forestall action here, and to compel the officers of this court to litigate in a foreign jurisdiction, seems obvious. What is alleged as constituting a cause of action in the Tennessee suit, to entitle the defendant to a decree for cancellation and surrender of the notes' which were sent by the plaintiffs to that state for collection, would furnish, if true, a complete defense to the action pending here, and no adequate reason is shown why this action should not proceed. That is especially true in view of the delay of the defendant in making this motion. Issue was joined in this cause in April last. It was set down for trial as a preferred cause on June 11th. This motion was then made, and the trial is now fixed for the first day of the term after the summer vacation. It is to the interest of the receivership and of the creditors that the question of the liability

p. 933

of the defendant should be determined speedily. He has answered in the cause, and it is ready for trial. The court below was right in refusing to stay the trial, and the order is affirmed, with costs.