Weinberg v. Weinberg — 67 N.Y. Sup. Ct. 167

Majority

p. 167

RACHEL WEINBERG and Another, Respondents, v. PHILIP WEINBERG and Another, Appellants.

Headnote

Practice — set-off made the basis of a new action — when a pa/rty is put to his election.

An action was begun in Kings county for a breach of contract. A few days later the defendants in that action began an action against the plaintiffs therein in the county of New York for moneys paid and loaned. In the second action the plaintiffs of the first action interposed a counter-claim setting forth the facts stated in tlieir complaint for breach of contract.

Reid, that, as the defendants might have interposed as a counter-claim to the first action the cause of action which was the substance of the second action, and had not done so, they could not now compel the plaintiffs in the first action to elect in which action such plaintiffs' claim should be tried, and that both actions must stand for trial.

Appeal by the defendants, Philip Weinberg and Louis Clark, Jr., -from an order, entered in the Kings county clerk’s office on the 28th day of January, 1891, denying their motion that plaintiffs be ordered to elect either to proceed in this action or to confine themselves to the counter-claims set up in their answer in an action between the same parties, brought in the county of New York, and in case the plaintiffs elect to proceed herein, that their proceedings in New York upon said counter-claims be perpetually stayed; and that in case the plaintiffs elect to confine themselves to the counterclaims in the New York action, that this action be perpetually stayed.

p. 168

This action was begun November 11, 1890, for a breach of contract relative to the sale and delivery of seal skins. On November 18, 1890, the defendants began in New York county an action against the plaintiffs for moneys expended and loaned, wherein these plaintiffs set up as a counter-claim the facts set forth in the first action. Thereafter the defendants sought by motion to compel the plaintiffs to try their claim in one action or the other.

Ferdinand Kurzmam, for the appellants.

Charles F. JBurlce, for the respondents.

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 counter-claim 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 cause 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 in 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.

BakNAed, P, J., and DykmAN, J., concurred.

Order affirmed, with costs and disbursements.