80 A.D. 44 | N.Y. App. Div. | 1903
Lead Opinion
The defendant in this action, as the assignee of the Berlin Iron Bridge Company, in May, 1901, brought an action in the Supreme Court of this State—the venue being laid in the county of New York — against the plaintiff to recover the sum of $10,233.65 for an alleged breach of contract. The defendant in that action interposed
The court at Special Term was of the opinion that the injunction
It cannot seriously be doubted but that a court of equity has the power to enjoin a party to an action pending in this State from prosecuting an action subsequently commenced in another jurisdiction, between the same parties, to recover upon the same cause of action and for the same relief, or that it is the duty of the court to exercise that power, where equity and good conscience require it. (Edgell v. Clarke, 19 App. Div. 199.) Whether it will exercise that power rests largely in its discretion and necessarily depends upon the facts presented in each particular case. Here, we think, the discretion was properly exercised. The bridge company having commenced its action in this State, and the Locomobile Company having, as appears, property more than sufficient to satisfy its claim, which can be reached by attachment, it ought not to be permitted to prosecute the action subsequently commenced in Connecticut, in view of the fact that the trial of that action may injure the Locomobile Company by depriving it of the benefit of the deposition taken in the action in this State, and it is fair to infer, under the facts presented, that the purpose of the action was to prevent the use of that deposition. In this connection it is to be noted that no offer was made that the deposition might be read in that action ; on the contrary, the only statement is that “ the attorney for the defendant in this action has no objection to consenting that the testimony of the witness John C. Speirs,- taken in the New York action, may be used in the Connecticut action if it be true that the attendance of said witness cannot be had upon the trial of said action.” Who is going to determine whether or not the attendance'of said witness can be had and when is such determination to be made ? It is also to be noted that this qualified offer was only made in answer to plaintiff’s motion for an injunction, notwithstanding the fact, according to the moving affidavits, that ineffectual efforts had theretofore
Upon all of the facts, therefore, we are of the opinion that the court properly exercised its discretion in granting the injunction, and the order appealed from should be affirmed, with ten dollars costs and disbursements.
O’Brien and Laughlin, JJ., concurred; Patterson, J., concurred in result; Van Brunt, P. J., dissented.
Dissenting Opinion
I dissent. A party may bring actions in as many jurisdictions as he pleases upon the same cause of action, and he can try the one which he can first bring to trial, provided, however, that the actions are not fraudulently brought.
Order affirmed, with ten dollars costs and disbursements.