Weinberg v. Weinberg — 38 N.Y. St. Rep. 734

Majority

p. 734

Rachel Weinberg et al, Resp’ts, v. Philip Weinberg et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed May 11, 1891.)

Headnote

Election between actions.

Where a defendant after service of the summons upon him brings an ac

p. 735

tion in another county upon a claim which might have been interposed as a counterclaim, and in such action the plaintiffs interpose as a counterclaim the facts on which their action is based, they should not be required to elect in which action their claim be tried.

Appeal from order denying motion of defendants that plaintiffs be ordered to elect to either proceed in this action or coniine themselves to the counterclaims set up in their answer in an action brought by defendant, and if they elect to confine themselves to such counterclaims for a stay in this action.

This action was commenced on November 12, 1890, to recover damages for breach of contract, and the complaint was served November 26th. On the 18th of November the defendant brought an action against the plaintiffs for moneys paid, laid out and advanced and for moneys loaned, in which action these plaintiffs interposed as counterclaims the causes of action set forth in the complaint in this action. Thereafter this motion was made and denied.

Ferdinand Kurzman, for app’lts; Charles E. Burke, for resp’ts.

This action was begun November 12, 1890. Defendants have, a claim against plaintiffs which they might have pleaded as a counterclaim. They preferred to bring an independent action in another county.

In that action these plaintiffs interpose as a counterclaim 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 to 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 ten dollars •costs and disbursements. .

Barnard, P. J., and Dykman, J., concur.