118 Misc. 11 | N.Y. Sup. Ct. | 1922
These actions are brought to recover amounts due to the plaintiff in each case from the defendant “ as the owner and holder of certain notes issued by defendant, each payable to bearer or is registered to the registered holder thereof, with interest at seven per cent,' on the first day of September, 1921, at the office of J. P. Morgan & Co.,” and the complaint in each case alleges “ that the plaintiff is and was at maturity thereof the owner and legal holder of said notes, payable to bearer; that upon the maturity of said notes the same were duly presented for payment and payment demanded, which was refused, and no part of the principal of said notes has been paid,” and judgment is demanded for the amount of said notes, with interest from September 1, 1921. The answer in each case admits the making, presentment, demand and non-payment of the notes specified in the complaint, but puts in issue, by a denial of knowledge or information thereof sufficient to form a belief, the plaintiff’s ownership of the notes and sets up two separate defenses: 1. That the notes in suit are part of an issue
The common-law right to bring such suit may not be taken away by mere implication. The provisions of the collateral indenture pertain solely to the enforcement of the collateral security pledged to secure the payment of the notes and do not relate in any way to any action on the notes themselves. The said notes read as follows: “No... $1,000. United States of America. State of New York. Interborough Rapid Transit Company. Three-year secured convertible 7 per cent, gold note. Interborough Rapid Transit Company (hereinafter called the ‘ company ’), for value received, hereby promises to pay to the bearer, or, if registered, to the registered holder hereof, the sum of one thousand dollars, on the first day of September, 1921, at the office of J. P. Morgan & Co., in the Borough of Manhattan, City of New York, in gold coin of the United States of America of or equivalent to the present standard of weight and fineness, and to pay interest thereon from September 1,1918, at the rate of seven per centum (7%) per annum, payable in like gold coin, at such office, semi-annually, on the first day of March and the first day of September, in each and every year, until the payment of said principal sum, but only upon presentation and surrender of the annexed coupons for such interest as severally they mature, without deduction from such interest for federal income taxes (except for any such federal income taxes
The pendency of a federal suit, as alleged in the second separate defense of the answer, even though between the same parties and for the same cause, is no defense to an action in the courts of this state, although the federal court is in the same district as the state court. Curlette v. Olds, 110 App. Div. 596; Oneida County Bank v. Bonney, 101 N. Y. 173; Litchfield v. City of Brooklyn, 13 Misc. Rep. 693; Borden’s Condensed Milk Co. v. Baker, 177 Fed. Rep. 906; Snyder v. De Forest Wireless Telegraph Co., 154 id. 142; 1 C. J. 87, § 122. The federal suit here pleaded is not between the same parties nor for the same cause. To make the defense of another action pending the other action must be between the same parties and for the same relief. Gerry v. Webster, 11 Hun, 429; Cobb v. Cullen Bros. & Lewis Steel Co., 68 App. Div. 179; Raven v. Smith, 71 Hun, 197. The requirement that it must appear that the first action is for the same cause as the second is strictly enforced. Dawley v.
The second defense is insufficient on its' face and presents no issue. The testimony in support thereof which the defendant purposes to take is, therefore, irrelevant and not material or necessary to the defense of the action. The defense being insufficient in law, the only issue presented by the pleadings is the plaintiff’s ownership of the notes. That is conclusively established by the affidavit showing the purchase of the notes in the open market for value; the presentment of the notes for payment by the plaintiff at the office of J. P. Morgan & Co., where they were made payable by their terms; the inspection and counting thereof by the representative of that firm when he refused to pay them on the ground that they were without funds with which to make such payment. That firm, by the terms of the note, was the defendant’s agent, and the knowledge of that firm that the notes were presented is knowledge by the defendant of the plaintiff’s ownership of the notes, which is further conclusively established by their production in court upon this motion. The motion for summary judgment is a new remedy, under rule 113, and the very fact that it is based upon a different rule from the motion for judgment on the pleadings is in itself sufficient evidence that the remedies are distinct. Moreover, a motion for judgment on the pleadings may be made in any case, but a motion for summary judgment is permitted in the limited class of cases specified in the rule, to wit, to recover a debt or liquidated demand arising (1) on a contract, expressed or implied, sealed or unsealed, or (2) on a judgment for a stated sum. The very purpose of the new rule was to prevent the delaying of judgment
Ordered accordingly.