
    Samuel Thomas Walkup, Respondent, v. David W. Mesick, Doing Business under the Name and Style of Fulton Foundry and Machine Company, Appellant.
    First Department,
    December 30, 1905.
    Injunction — when.defendant not required to set out cause ,of action as counterclaim — separate action on such claim not enjoined.
    When the plaintiff has brought an action for conversion and for breach of a contract, and the defendant has previously issued a summons in another court on an action arising out of the same transaction for work, labor and services, but only sets up a general denial to plaintiff’s action for conversion and breach of said contract,'the prosecution of the defendant’s prior action should not be stayed because he has a right to prosecute, his counterclaim as a separate action.
    _ Appeal^ by the defendant, David W.. Mesick, doing business under the name and style of Fulton Foundry and Machine Company, from so much of an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 30th day of October, 1905, as.grants plaintiff’s motion for a stay of a certain action pending in the Municipal Court until the final determination of this 'action.
    
      
      Robert H. Roy, for the appellant.
    
      Charles S. Foote, for the respondent.
   Clarke, J.:

This action was commenced by the personal service of the summons upon the defendant on the 8th day of June, 1905. Two days before, upon the 6th day of June, 1905, the defendant procured to be issued from the Municipal Court,'first district, borough of Brooklyn, a summons in the action of David W. Mesick against Samuel Thomas Wallcup to recover the sum of $119.63 for work, labor and services rendered and materials furnished. That summons was not, however, served until the 9th day of June, 1905. The complaint in the case at bar was verified on the thirteenth day of June. It alleges as a first cause of action t¡he wrongful conversion of certain personal property owned by the plaintiff and alleges the value thereof to be $750. For a second cause of action it sets up the making of a contract by which the defendant agreed to manufacture certain articles for which the plaintiff agreed to pay the fair and reasonable value upon completion ; that plaintiff had paid during‘the progress of the work $1,200; that defendant had not completed within a reasonable time, and that by reason of bad workmanship and delay, the plaintiff had been and will be obliged to pay other mechanics for the proper completion thereof, and alleges damage by such breach $300, and demands judgment for $1,050. The answer is a general denial.

In the Municipal Court action the defendant, the plaintiff in the case at bar, interposed an answer containing a general denial, a plea for another action pending, and a counterclaim of $1,050, being the same cause of action set up in his complaint herein. Plaintiff moved in the Special Term of the Supreme Court upon the pleadings and bills of particulars m both actions, and upon an affidavit setting forth that the two' actions arose out of the same transaction, for the removal of the Municipal Court action into this court, and its consolidatipn with the suit at bar, or for an order staying the further prosecution of the Municipal Court action until the final determination of this' action. The court at Special Term denied the motion, so far as the removal was concerned, but granted the stay. Defendant appeals from that portion of the order.

This being an action at law ' in which no equitable relief is demanded in the complaint, it would seem that, authority for this injunction order — for so it is and nothing else. must be .found in section 604 of the Code ■ of Civil Procedure, which provides as follows-: Where it appears, by affidavit, that the defendant, during the pendency of the action, is doing, or procuring, or suffering to be done, or. threatens, or. is about to do, or to procure^, or suffer to be done, an act, in violation of the plaintiff’s rights, respecting the subject of the action, and tending to render the judgment ineffectual, an injunction order may be granted to restrain him therefrom.” .It would also seem that section -611 Of the Code' of Civil Procedure aptly applies. That-section provides as follows: “An injunction , order shall not be granted to stay the . trial of an action, in. which the complaint demands judgment for a sum of money only, after issue has been joined therein, unless the party applying therefor gives an undertaking to the party enjoined, with sufficient sureties, to the effect that he will pay to the party enjoined, or. his representative, all damages- and costs which maybe recovered by him in the -action stayed by the injunction, not exceeding a sum specified in the undertaking, and also all damages and costs that may be awarded to him in the action in which the injunction order is granted.” It does not appear that any such undertaking was required ór-given. '

< Irrespective of this defect,. I ‘ think this order was not proper, The defendant has not set Up a counterclaim in the suit at bar. lie has'chosen to defend against the plaintiff’s two claims of conversion and breach of contract. He has chosen to bring his own action in a forum of his own selection upon his claim for work,, lab,or and services. He cannot be compelled to set up his counterclaim herein. He had .the right to, reserve his own claims for a cross-action, the conduct of which he could control, and to confine his defense in the action brought against him.to such matters as would -defeat the claims thfere set lip. (Brown v. Gallaudet, 80 N. Y. 413 ; Ogden v. Pioneer Iron Works, 91 App. Div. 396.) Assuming that the plaintiff should be defeated as to either of his causes of action, or airy part -thereof, defendant could obtain no affirmative relief. (Kerngood v. Pond, 84 App. Div. 227.)

The exercise of the power to stay another suit in a different court is discretionary. Even if that power exists in such a case-as that at bar, it ought not to have been exercised.

So much of the order as is appealed from reversed, with ten dollars costs and disbursements, and stay vacated, with ten dollars costs to appellant.

O’Brien, P. J., Patterson, Ingraham and Iaughlin, JJ., concurred.

So much of order as is appealed from reversed, with ten dollars costs and disbursements, and stay vacated, with ten dollars' costs to appellant.  