Consolidated Fruit-Jar Co. v. Wisner

56 N.Y.S. 723 | N.Y. App. Div. | 1899

Lead Opinion

GOODRICH, P. J.

The complaint contains allegations making this an action in equity to compel an accounting by the defendant for Ms acts while president of the plaintiff corporation. The defendant answered, and, among other defenses, set up as a plea in abatement the pendency of a prior action, the venue of which was; in the county of Monroe. The issues were referred to Thomas Allison, Esq., before whom stipulations were made so as to call simply for a decision of the question whether the plaintiff should have an interlocutory judgment requiring the defendant to account as to-matters alleged in the complaint. The referee decided that the defendant was bound to account, and from the interlocutory judgment entered thereon the defendant appeals. The opinion of the referee fully states the facts upon which the question arose, and will be found in the note hereto appended.

The opinion of the learned appellate court of the Fourth department, referred to in the opinion of the referee, is reported in 25 App. Div. 362, 49 N. Y. Supp. 500, and is the declared law of -this litigation, concurrence with which is requisite, not alone for the orderly administration of justice, but because the reasoning of the opinion commends itself to our judgment. That opinion holds that the action in the county of Monroe is an action at law. There is authority for saying that the pendency of an action at law cannot *727be pleaded in abatement of a suit in equity, even where the same party is the plaintiff in each action. Gillette v. Smith, 18 Hun, 10; Thorne v. Tanning Co., 15 Fed. 289, 291; Story, Eq. Pl. § 742; Daniell, Ch. Prac. 658; 1 Enc. Pl. & Prac. 752, note. These decisions and authorities, except the first cited, which was rendered by the old general term of the Second department, relate to systems of practice where the distinction between law and equity forms remains in force. It would seem that the reasoning ought to prevail, a fortiori, under our Code of Civil Procedure, where, although the fundamental distinction of law and equity continues, the forms of pleading are practically abolished. It follows that the interlocutory judgment must be affirmed, unless the conditions are changed by the fact that the defendant, Wisner, under the leave granted by the appellate division in the action in the county of Monroe, has amended his complaint, and has changed the rights of the plaintiff as they existed at the time the present action was commenced. Even conceding that the amended complaint has changed that action from one at law to an action in equity,—-which we are not called upon to decide,—we are clearly of opinion that such an amendment, made after the commencement of the present action, can have no effect to work an abatement of the present action.

The interlocutory judgment must therefore be affirmed.

Interlocutory judgment affirmed, with costs. All concur.





Concurrence Opinion

HATCH, J.

I concur in the conclusion reached by the Presiding Justice in this case. The claim of the appellant is that his plea in abatement should be sustained, for the reason that all the rights of the parties can be settled in the action brought by the defendant herein, and that, as the court first acquired jurisdiction of that action, the entire claims of the parties should be adjudicated therein. If it be true that such is the necessary result of a determination of the matters set up in his complaint in that action, then I am of opinion that his claim should be sustained. It matters not whether his action be denominated legal or equitable; if, under it, it can result in the determination of all the matters in controversy between the parties, then his plea in abatement ought to be sustained. The general rule is that, where the court has equal or concurrent jurisdiction, that will be continued in which the process was first served; and this without regard to whether the proceeding is pending in the same or another court, and without reference to whether one be legal and the other equitable, as the object to be accomplished in each is the same. Schuehle v. Reiman, 86 N. Y. 270; Draper v. Stouvenel, 38 N. Y. 219; Groshon v. Lyon, 16 Barb. 461; Lacustrine Fertilizer Co. v. Lake Guano & Fertilizer Co., 62 N. Y. 476. This being the established rule, the question presented by this appeal is to be determined by a consideration as to whether the rights of the parties in their entirety can be settled in the first action. I am of opinion that the plaintiff has failed to sustain his contention in this regard, and the reasons for such opinion are stated by the learned referee in his opinion overruling the plaintiff’s claim. It was deter*728mined by the appellate division in the Fourth department that the ñrst action was an action at law to recover a sum of money; and while, in view of the manner in which the pleading in that action was framed, the burden was assumed by the plaintiff of taking and stating an account, yet the relief demanded, and all to which the plaintiff was entitled, was the recovery of a sum of money. Wisner v. Jar Co., 25 App. Div. 362, 49 N. Y. Supp. 500. It is entirely clear, as stated by the referee below, that such action need proceed no further than was necessary to reach a determination that the plaintiff was not entitled to recover any sum of the defendant; and, although it might be made to appear that the defendant was entitled to recover of the plaintiff in that action, yet it would be entitled to no affirmative relief, and could have no affirmative judgment in its favor, unless it joined issue, therein, and by counterclaim sought to recover affirmatively any sum to which it might show itself entitled. But this result would not necessarily be produced by the averment of plaintiff’s complaint. It could only be had, if the facts warranted, by an affirmative pleading upon the part of the defendant.

It was said by Judge Rapallo, in speaking of a similar claim:

“And, moreover, he was not bound to rely on the credit given him in Gallaudet’s complaint; ior, if he succeeded in defeating Gallaudet’s claims, he could not, under that complaint, have obtained an affirmative judgment for the sums due him. To entitle himself to such a judgment, it was necessary that Brown should set up his own claims by way of counterclaim; and this, as has already been said, he was not bound to do.” Brown v. Gallaudet, 80 N. Y. 413.

And further it was therein stated:

“He had the right to reserve his own claims for a cross action, the conduct of which he could control, and to coniine his defense in the action brought by Gallaudet to such matters as would defeat Gallaudet’s claims set up in that action.” Id., 417.

The same rule has been applied in other cases (Carlin v. Richardson [Super. Buff.] 1 N. Y. Supp. 772; McGrath v. Maxwell, 17 App. Div. 246, 45 N. Y. Supp. 587), and in other cases cited by the learned referee.

This being the status of these two actions, it would seem that both should be permitted to proceed, as both seem to be necessary to settle all the matters in controversy between these parties. I am therefore in favor of the affirmance of the interlocutory judgment.