Majority
p. 258Thomas A. Hay, Appellant, v. Pamelia B. Cole, Defendant. Frederick C. Schulze, Respondent.
Headnote
Concurrent remedies cannot be prosecuted at the same time for the same relief.A person has no right to prosecute concurrent remedies at the same time in different courts for the same relief.
Appeal by the plaintiff, Thomas A. Hay, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of February, 1895, vacating and setting aside, as to one Frederick C. Schulze, a judgment entered upon confession of the defendant in favor of the plaintiff.
James W. MeElhmney, for the appellant.
Andrew Shilcmd, Jr., for the respondent.
It is disclosed by the record that the respondent brought an action in the Court of Common Pleas against Thomas A. Hay to set aside said judgment on the same ground disclosed in the motion papers, which action was pending when this motion was heard and decided. This fapt is conceded. The respondent had no right to prosecute concurrent remedies at the same time in different courts for the same relief. Had he desired to obtain relief by motion he should have discontinued his action, and the pending action is a defense to this motion.
p. 259
The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs and disbursements.
Pi’esent — Follett and Parker, JJ.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollai’s costs and disbursements.