Grammer v. Greenbaum

130 N.Y.S. 569 | N.Y. App. Div. | 1911

McLaughlin, J.:

In September, 1910, the defendant Greenbaum, as - receiver ox' the National Standard Brewing Company, commenced an action in the City Court of the city of New York against the plaintiff in this action to recover from him the sum of $1,200, under an agreement to purchase a certain number of shares of the capital stock of the National Standard Brewing Company. The action was tried and in October following, judgment rendered in favor of Greenbaum, as receiver, for the. amount claimed. An appeal was taken to the Appellate Term and while the same was pending this action was commenced for the purpose of setting aside the agreement upon which the judgment in the City Court action had been obtained, the plaintiff alleging that such agreement was obtained by fraud practiced upon him, which entitled him to a rescission, the judgment demanded. The Appellate Term reversed the judgment of the City Court and ordered a new trial. (Greenbaum v. Grammer, 71 Misc. Rep. 433.) Thereupon the plaintiff moved in this action to stay the receiver from prosecuting the action in the City Court. The motion was granted and the appeal is from that order.

This court has several times said that the trial of an action cannot be stayed in this Way. The power of- the court to stay proceedings or control the trial of an action is one which must he exercised in the action itself (Raymore Realty Co. v. Pfotenhauer-Nesbit Co., 139 App. Div. 126; North Central Realty Co. v. Blackman, 145 id. 199), -and where it is sought to enjoin parties from proceeding in another action, such relief must be by ^injunction in an action where such relief is demanded in the complaint. (Belasco Co. v. Klaw, 98 App. Div. 74; Webster v. Columbian National Life Ins. Co., 131 id. 837; affd., 196 N. Y. 523.)

Under the authorities cited the court could not, by an order in this action, stay the trial of the City Court action. Nor could it enjoin the prosecution of that action by an order in this, because no such relief is demanded in the complaint.

It follow's that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., Clarke, ' Scott and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, arid motion denied, with ten dollars costs. 1