Edgell v. Clarke

45 N.Y.S. 979 | N.Y. App. Div. | 1897

Ingraham, J. :

The defendant brought an action in Mississippi against the plaintiff Edgell, as surviving partner of Austin. Corbin, for ser vices, rendered by the defendant to the firm of which Corbin and the plaintiff were members, and that action is now pending. The plaintiffs, and the defendant are all residents of- this State, but the matters in dispute between the parties to the Mississippi.action are no.t involved in any action or proceeding pending in tins State. ' The Mississippi action is purely, a transitory.and- personal one, and by commencing it there the defendant has obtained a lien Upon property owned by the plaintiff. Edgell, or in which he' is interested, which gives him security for any judgment that he may recover. This court is asked' to restrain the defendant from prosecuting that.action in the State of Mississippi, because the plaintiffs would prefer to have the action determined in this State.

While the power of a court of equity to enjoin its citizens from prosecuting actions brother jurisdictions is well settled, and it is the duty of the court to exercise that power Where equity and good conscience require it, we think that there are no facts' presented in this case to justify such an interference. It is urged that the rule of evidence as to the giving of testimony by a party to an action as-against the executor or survivor of a deceased partner, is somewhat more liberal in the. State of Mississippi than in this State, and that it is possible .that the defendant would there be allowed' to give evidence of conversations with the deceased partner of the plaintiffs’ firm, which' he would not 'be allowed, to give in-this State. That fact is not. of itself a reason for' .preventing, the. defendant from prosecuting his .action in the forum which he-hás. chosen, nor is the consideration that it would be inconvenient for- the plaintiffs to produce their copartnership books in the State of Mississippi a reason for requiring the litigation between these parties to -be had in this State. Unless we are prepared' to say that, in all cases where two residents of this State have a dispute, we will compel them to litigate questions at issue between them in the courts of this State alone, and prevent them by injunction from appealing to the courts of any other jurisdiction, we should not be authorized to interfere in this action. In every case in which resort is had to the courts of another State, it is because of some advantage to be obtained by the person prosecuting the action there. All that is alleged in this case is that, by the laws of the State of Mississippi, the defendant will be in a more advantageous position to prove his contract than if the case were tried here. There- is nothing inequitable or unjust in allowing him to prosecute his claim there rather than here. Whatever benefit he would derive would be because of a mere rule of evidence, and not a difference in the substantive law by which he would in that State secure a right which, within our law or our public policy, would be denied him here. The mere convenience of witnesses, or of a party in attendance at the trial, would not justify our changing by injunction the venue from Mississippi to this State. N o facts were presented to the court below to justify the exercise of such a power.

The order is affirmed, with ten dollars costs and disbursements.

Patterson, Rumsey, O’Brien and Parker, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.