Dolbeer v. Stout — 61 N.Y. Super. Ct. 172

Majority

p. 172

FRAZIER M. DOLBEER, Appellant v. JOHN STOUT, Respondent.

Headnote

Stay of proceedings in this action until the trial and determination of another action pending in Supreme Court.

The Supreme Court action was commenced first. If that action is stayed the defendant here, who is the plaintiff there, can use only a small portion of his demand, and may be compelled to renew his litigation for the balance ; but if the Supreme Court action is tried first, the entire amount of defendant’s demand will be litigated and disposed of. The law does not encourage double trials and multiplicity of suits, and the court will stay one action and allow the other in which entire relief may be awarded to proceed. Defendant’s motion for a stay granted.

Before Sedgwick, Ch. J., and Freedman, J.

Decided May 2, 1892.

Appeal by plaintiff from an order made at special term staying all proceedings in this action until the trial and determination of an action pending in the Supreme Court.

p. 173

The following opinion was rendered by Judge McAd am at the special term upon which the order appealed from was affirmed.

Edward S. Clinch, attorney and of counsel, for appellant.

Thomas J. Farrell, attorney, and D. M. McMahon of counsel, for respondent.

The Supreme Court action was commenced first. It is to recover $19,546.09, and but for the voluntary assignment made by Linde & Co., the cross demand could have been litigated in the Supreme Court action. If that action is stayed, the defendant here, who is the plaintiff there, can use only a small portion of his demand ($4,811.46), and may have to renew his litigation as to the balance. If the Supreme Court action is tried first, the entire $19,546.09 will he litigated and disposed of. The law does not encourage double trials and multiplicity of suits, and the court will stay one action and allow the other, in which the entire relief may he awarded, to proceed. People v. Northern R. R. Co., 53 Barb., 98 ; Jackson v. Schauber, 4 Cow., 78 ; Jackson v. Stiles, 5 Ib., 282; McFarlan v. Clark, 2 Sand., 699 ; Avery v. N. Y. C., etc., R. R. Co., 30 State R., 239 ; S. C. 9 Supp., 404; Third Ave. R. R. Co. v. Mayor, 54 N. Y., 159 ; N. Y., L. E. & W. R. R. Co. v. Robinson, 15 State R., 237 ; Sorley v. Brewer, 18 How., 509 ; Schuehle v. Reiman, 86 N. Y., 270 ; Cushman v. Leland, 93 Ib., 652 ; Pusey v. Bradley, 46 How., 255 . It follows that the defendant’s motion for a stay must he granted and the plaintiff’s motion to compel an election denied. No costs.”

The order should be affirmed, with costs, upon the opinion of the special term.