Majority
p. 858Frazier M. Dolbeer, App’lt, v. John Stout, Resp’t. (New York Superior Court, General Term, Filed May 2, 1892.) The following is the opinion of the special term: McAdam, J.—The supreme court action was commenced first. It is to recover $19,546.09, and but for the voluntary assignment made by Linde & Co., the cross demand could have been litigated in the supreme court action. If that action is stayed, the defendant here, who is the plaintiff there, can use only a small portion of his demand ($4,811.46), and may have to renew his litigation as to the balance. If the supreme court action is tried first, the entire $19,546.09 will be litigated and disposed of. The law does not encourage double trials and multiplicity of suits, and the court.
Headnote
Stay—When will be granted.Where it appears that the claim in suit was set up as a cross demand in a suit previously brought by defendant in another court, in which entire relief may be awarded, a stay until the trial of the prior action is proper.
Appeal by plaintiff from order staying all proceedings in this action until the determination of an action pending in the supreme court.
p. 859
will stay one action and allow the other, in which the entire relief maybe awarded, to proceed. 53 Barb., 98 ; 4 Cow., 78 ; 5 id., 282; 2 Sand., 699; 30 St. Rep., 239 ; S. C. 9 Sapp., 404; 54 N. Y., 159 ; 15 St. Rep., 237 ; 18 How. Pr., 509 ; 86 NT. Y, 270; 98 id., 652 ; 46 How., 255 . It follows that the defendant’s motion for a stay must be granted, and the plaintiff’s motion to compel an election denied. No costs.
Edward S. Clinch, for app’lt; B. M. McMahon, for resp’t.
The order should be affirmed, with costs, upon the opinion of the special term.
Sedgwick, Ch. J., and Freedman, J., concur.