Majority
p. 893Thomas C. Smith, Pl’ff, v. The College of St. Francis Xavier et al., Def’ts. (New York Superior Court, General Term, Filed July 5, 1892.) The following is the opinion by the court below: Gildersleeve, J.—I do not think this action and the one in the supreme court are identical The papers before me do not disclose a state of facts that warrant the granting of a stay in this
Headnote
Stay—When toi not be granted.Where the parties to the two actions are not identical, and the complaint in the one first brought alleges additional matter and demands more relief than is sought in the other, a stay should not be granted in the latter action.
Appeal by defendant Mary L avette from order denying the motion to stay proceedings.
p. 894action preceding the determination of the supreme court action. It will not be denied that where two suits are commenced in different courts, and the subject of the action and the parties are the same in each, the court which first acquires jurisdiction should dispose of the whole matter. McCarthy v. Peake, 18 How. Pr., 138 . But the parties to these two actions are not the same, inasmuch as John Gorman, who appears as one of the defendants in the supreme court case, is not mentioned in the superior court suit. What his interest is, does not appear; but the fact remains that the parties to the two suits are not identical. It is true that the property involved is the same in both actions; but that is not a sufficient reason for granting the stay. Stowell v. Chamberlain, 80 N. Y., 272 ; Dawley v. Brown, 79 id., 398-400 . It is also true that all the relief demanded in the superior court case, which is the junior action, is demanded in the supreme court case, but the complaint in the latter case alleges additional matter, -and the prayer asked for more than is sought in the superior court case. The same evidence would not support both actions, inasmuch as more evidence would be required in the supreme court case than would be necessary in the superior court case. See Stowell v. Chamberlain, supra. To sustain a plea of former action pending, which is governed by the same principle as a motion for a stay, Dawley v. Broion, 79 N. Y., 400 , it is necessary that it appear that the first action is for the identical relief demanded in the second action. Dawley v. Brown, supra; Kelsey v. Ward, 16 Abb. Pr., 102 -103, affirmed, 38 N. Y., 83 . So closely has this rule been enforced, that in the case of Kelsey v. Ward, supra, which is quoted with approval by the court of appeals in the case of Dawley v. Brown, supra, it was held that the pendency of actions for rent alleged to be payable quarterly was no defence to an action for the same rent under a claim that it was payable at the end of the year. Under the circumstances, the motion for stay is denied, without costs.
A. B. Johnson, for app’lt; George Bliss, for resp’t.
The order should be affirmed, with $10 costs, etc., upon the opinion filed by the learned judge below.
Freedman and Dugro, JJ., concur.;: