p. 697Fuller v. Read, commenced October 28, 1857; Read v. Fuller, commenced October 31, 1857.
Headnote
Fuller having a cause of action against Read, sued him; Read, after that, sued Fuller on a demand which fell due after Fuller’s suit was brought, and Fuller, in
p. 698(At General Term, February, 1857. Before Bosworth, Slosson, Woodruff and Pierrepont, J.J.)
Ms answer set up as a counter-claim, the cause of action on which his suit was brought.
Held, that Fuller, in that stage of the suits, could not he compelled to elect to prosecute his claim in only one of such suits, and to abide by such election. That the court should not obstruct the orderly course of proceeding in either action, until both were at issue on the merits.
If it then appeared that the merits of both could be fully tried, and full relief given in any one suit, the proceedings might properly be stayed in the other until that one was tried; that the pendency of the suit first brought was no bar to the right of the plaintiff therein to set up the matter of it as a defence to the suit subsequently brought against himself. (Reported in 15 How. Pr. R. 236.)