197 A.D. 199 | N.Y. App. Div. | 1921
This is an action at law in which the plaintiff demands a money judgment only and seeks no injunctive or other relief. Although the order appealed from provides that the “ defendant, his attorney or agent, be and they are hereby stayed from proceeding with the trial of the action commenced by the said defendant against the plaintiff herein in the Municipal Court, Borough of Manhattan, First District,” it is in effect an injunction granted in one action to stay the trial of another action between the same parties.
The order must be reversed for two reasons: First, that it contains no provision requiring the plaintiff to execute an undertaking as provided in section 611 of the Code of Civil Procedure; and secondly, that although a party seeking to stay a trial may move in the action sought to be stayed without giving security as required by section 611 of the Code, he cannot upon motion made in one action obtain an order staying the trial of another action. His remedy in the latter case is to bring an action for injunction. This has been held in numerous cases.
In Belasco Co. v. Klaw (98 App. Div. 74) the court said: “ 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 js 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.” (Code Civ. Proc. § 611.)
The opinion in Grammer v. Greenbaum (146 App. Div. 3) reads in part as follows: “ 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 be 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
The order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Clarke, P. J., Dowling, Smith and Page, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
