David Belasco Co. v. Klaw

90 N.Y.S. 593 | N.Y. App. Div. | 1904

O’Brien, J.:

This action was brought on December 2, 1903, for the dissolution of a copartnership between the plaintiff and the defendants Klaw and Erlanger, and for an adjudication that the défendant Brooks, a nominal partner, had no interest in said partnership. . On December 9, 1903, the defendant Brooks brought an action in the Supreme Court against David Belasco, claiming to be a partner of said Belasco, alleging that the latter had wrongfully taken a share of author’s royalties and that he (Brooks) had terminated the partnership by notice, and demanding a decree of dissolution and an accounting.

In the action brought by him, Brooks, as plaintiff, moved for a receiver and Belasco moved for a stay of proceedings pending the termination of the present action, brought by the Belasco Company. The former motion was granted and the motion for a stay denied. Subsequently the jffaintiff herein was made a party defendant in the action of Brooks v. Belasco. Thereafter the Belasco Company, the plaintiff herein, moved that the defendant Brooks be stayed from further proceedings in Brooks v. Belasco until the termination of this action, which motion was granted, and it is from the order entered thereupon that the defendant Brooks appeals.

Without considering the question of whether or not upon the merits one action should be stayed until the other can be tried, we think that the order appealed from was unauthorized. The inherent power of the court to stay proceedings or control the trial of an action is one which must be exercised in the action itself, and where it is sought to enjoin parties from proceeding in another action such relief must be by injunction in an action where by formal prayer it is demanded. [Neither under the provisions of the Code of Civil Procedure nor by sanction of any authority to which our attention has been called is the practice permitted to apply in an action brought for an entirely different purpose to stay the trial of another action. In the present instance the order granted is called an order staying the trial of another action; but in substance and effect it is an injunction order which has been granted in this action in which no injunctive relief is asked" and in which the plaintiff was not even required to give a bond. [It is clear, therefore, that the injunction is not warranted under section 603 of the Code of Civil Procedure because that section applies when the right to an in junction depends upon the nature of the action.

The proper practice was followed when the application for a stay was made in the action of Brooks v. Belasco, and though it was denied, we now have the anomaly of an application for what is termed a stay of such action (Brooks v. Belasco) made in the present action and granted. We are, of course, aware of the cases under the section of the Code of Civil Procedure referred to, where an action is brought and wherein, as part of the relief, an injunction is demanded, and wherein the court has power to grant a preliminary injunction to stay proceedings of the defendant during the pendency of the suit. In those cases, however, it will be found that part or all of the relief sought and for which judgment is demanded is an injunction to restrain the proceedings of the defendant during the pendency of the action.

In view of the suggestion that all of the questions can he disposed of in one action, it would seemingly be proper if all the parties to be affected are present that hut one action should proceed, and, if it appears that Brooks v. Belaseo is the action that should be stayed, such relief must he obtained in that action.

We think, therefore, that there is no authority for the order made and that it should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., Patterson, Hatch and Laughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, witli ten dollars costs.