Majority
p. 68WILLIAM H. CROSSMAN, et al., Respondents v. THE UNIVERSAL RUBBER COMPANY OF NEW YORK, Appellant.
Headnote
Concurrent remedy—Effect of proceedings in another State.The defendant is' a domestic corporation having its factory located in the State of New Jersey. The plaintiffs held certain promissory notes given by defendant for goods sold to it by plaintiffs. Before the maturity of said notes, plaintiffs instituted proceedings in the coiu't of chancery of New Jersey, had the defendant adjudged insolvent and a receiver appointed. Plaintiffs also instituted an attachment suit in the supreme court of New Jersey before the notes, were due. While these proceedings were still pending, and after the maturity of said notes, plaintiffs commenced this
p. 69Before Freedman, P. J., McAdam and Gildersleeve, JJ. Decided December 15, 1891.
action upon one of said notes. The defendant set up the pending of the proceedings in New Jersey as a bar to the action, and the court on the trial directed a verdict for the defendant, exceptions to be heard in the first instance at the general term. At general term the exceptions were overruled and judgment directed for defendant on the verdict. (51 Super. Ot., 459). Upon appeal the court of appeals reversed the judgment and ordered a new trial. Upon the second trial the court directed a verdict for the plaintiffs. The main contention of the defendant upon this appeal was that whereas the judgment of the court of appeals proceeds on the theory that the proceedings in the New Jersey courts were in rem, by evidence introduced on the second trial, it was shown that such proceedings were in personam and therefore a bar to this action. Held, that while a double satisfaction is not allowed, concurrent cumulative remedies are not in all cases forbidden. The ground upon which courts proceed in abating a subsequent suit between the same parties for the same cause of action is that the same is unnecessary and vexatious. Here the suits were in different jurisdictions and the circumstances seem to have justified both. No application for stays were made in either jurisdiction and the pleadings were the same, as on the former trial. The trial court in directing a verdict for plaintiffs acted in harmony with the views expressed by the court of appeals.
Appeal from judgment entered on verdict directed by trial judge in favor of the plaintiffs, and from an order denying a motion made upon the judge’s minutes for a new trial.
Estes, Barnard & Tiffany, attorneys, and Benjamin Estes of counsel, for appellant.
Norwood & Coggeshall, attorneys, and Carlisle Norwood, Jr. of counsel, for respondents.
While a double satisfaction is not allowed, concurrent cumulative remedies are not in all cases forbidden. The ground upon which courts proceed in abating a subsequent suit upon the ground of pendency of a former one between the same parties and
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for the same cause, is, that the subsequent suit is unnecessary, and therefore vexatious. This is not the case here. The suits were in different jurisdictions, one being in the courts of New Jersey. The circumstances seem to have justified both. No application seems to have been made either to stay the proceedings in the foreign jurisdiction or those pending here. The pleadings are the same as they were on the former trial of this case which resulted in a direction for the defendant, on the theory of election of remedies.
The Court of Appeals in reversing that judgment (see decision reported in 37 State Rep., 230, Book XIII., Lawyers’ Reports, p. 91) settled the law of the case, and the trial judge upon the second trial acted in harmony with the views expressed by our appellate tribunal, when he directed a verdict in favor of the plaintiffs. It follows, that .the judgment and order appealed from must be affirmed with costs.