86 N.Y.S. 955 | N.Y. App. Div. | 1904
In February, 1902, the defendant, the Pioneer Iron Works, contracted with the H. W. Johns-Manville Company to build for the latter a steam asphalt roofing plant for $11,600. The contract provided that time should be of the essence, and that the sum of $100 per day should be paid by the defendant as liquidated damages for a failure to complete the plant after a certain, stipulated period. In September, 1903, the defendant brought an action in the Supreme Court, Kings county, against the H. W. Johns-Manville Company to recover an unpaid balance of the purchase price of the plant, and the defendant in that action duly answered, setting up among other defenses, but not as a counterclaim, the failure of the Pioneer Iron Works to complete the plant according to contract and the damages resulting therefrom, but demanding no affirmative relief. Thereafter the claim of the H. W. Johns-Manville Company for damages arising from the failure to complete the contract was duly assigned by that company to the plaintiff herein, and this action was brought in Queens county upon the claim so assigned. The order appealed from, granted upon the defendant’s motion, stays all proceedings herein upon the part of the plaintiff until the determination of, and entry of judgment in, the action brought to recover the unpaid contract price.
No answer has been served, in this action, and it is impossible to tell what the issues will be. It was accordingly improper to grant the order in advance of the issue. (Fuller v. Read, 15 How. Pr. 236.)
Aside from this consideration, however, 1 am of opinion that the case presented by the facts is not within the class in which a stay should be granted pending the trial of another action. The defendant cannot recover its claim for liquidated damages in the action in Kings county, and it cannot be compelled to set up such claim as a counterclaim therein. The actions are not between the same parties nor are they for the same cause. Although both arise out of .the same contract one is upon the contract for the stipulated price, while the other is for damages growing out of an alleged breach.
To the same effect are the decisions of this court in Consolidated Fruit Jar Co. v. Wisner (38 App. Div. 369) and of the Appellate Division in the first department in Kerngood v. Pond (84 id. 227) The moving papers disclose no equity in favor of the defendant. The only suggestion made is that this action was brought in Queens county because the condition of the calendar is such that a speedier trial can be obtained there than is possible in Kings county, and that it was also brought in order to forestall the trial of the claim on the contract by a prior trial of the claim for damages. Both objects are within the strict rights of a litigant. Equity is not opposed to a speedy trial of a case, and a defendant may elect to enforce a claim by an action in the forum of his choice rather than to submit it by way of counterclaim in the suit of his opponent.' This latter proposition was expressly held in Brown v. Gallaudet (80 N. Y. 413.) The court said (p. 417): “ Brown was not bound
The same rule was applied in Inslee v. Hampton (8 Hun, 230) ; Carlin v. Richardson (17 N. Y. St. Repr. 399) ; McGrath v. Maxwell (17 App. Div. 246), and Gillespie v. Torrance (25 N. Y. 306). (See, also, Clark v. Vilas National Bank, 22 App. Div. 605.)
The learned counsel for the respondent cites no authority in support of the order. The cases presented are all of the class referred to in Dolbeer v. Stout (supra), where the judgment on one trial will determine and dispose of the claims set up in the action which is stayed. Here, however, the plaintiff’s claim cannot be enforced under the pleadings in the first action, and the authorities referred to have no application.
The order should be reversed and the motion denied.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.