
    Richardson v. Davidson.
    
      (Supreme Court, General Term, First Department.
    
    May 24, 1889.)
    1. Pleading—Equitable Defense—Separate Action.
    Under the Code system, where defendant may set up all the defenses, legal or equitable, which he may have to an action, he cannot maintain a separate action, based on an equitable defense, to enjoin the first action.
    "2. Same.
    Defendant having answered the complaint in the first action, it is immaterial whether or not under the issue thus made the equitable defense sought to be enforced by injunction can be determined. It is defendant’s own fault if his pleading does not cover his case.
    ’3. Same—Multiplicity of Suits.
    After a defendant has allowed a number of actions against him to go to issue and to be ready for triqfi, it is too late to maintain a separate action to establish his defenses to those actions on the ground of preventing a multiplicity of suits.
    Appeal from special term, Mew York county.
    Plaintiff, Benjamin Richardson, appeals from so much of an order as demies a preliminary injunction against the defendant, John Davidson.
    Argued before Van Brunt, P. J., and Bartlett and Maoomber, JJ.
    ■ H. G. Wood, ( Wm. T. Washburn, of counsel,) for appellant. James M. JTisTc, (Wm. H. Arnoux and Thomas Darlington, of counsel,) for respondent.
   Van Brunt, P. J.

In May, 1887, the defendant commenced three actions-against the plaintiff and others, for the foreclosure of three mortgages. Issue was finally joined in said foreclosure suits on the 19th of October, 1887, by the service of a reply. The case was on the calendar in October, and during the November term consents were signed, and an order entered referring the case to a referee to hear and determine; notices of reference were served, and the cases set down for trial on December 12th; and on the 8th of December, four days before the day fixed for the trial, the summons, complaint, and'preliminary injunction in this action were served upon the defendant herein,, the complaint and affidavit being sworn to on the 1st of December. By the injunction the defendant was, among otherthings, restrained from further prosecuting or attempting to prosecute the said foreclosure actions. The injunction was accompanied by an order to show cause why it should not be made-permanent. Upon the hearing of the motion to make the injunction permanent, the same, so far as it affected the prosecution of the action in question, was dissolved, and from the order thereupon entered this appeal is taken. It is true that the learned court in its opinion stated as one of the reasons for the-dissolution of the injunction that the plaintiff could, under his answer in the-foreclosure actions, obtain full relief in those actions. But it is immaterial, as far as the decision of this motion is concerned, whether he could or could, not obtain all. the relief which he asked in this action under his answers im the foreclosure suits. If the plaintiff herein had any defense to those suits, whether legal or equitable, he was bound to set it up in those actions, and he-will not be permitted to file a bill or maintain an action for the purpose of obtaining an injunction against the prosecution of another suit when the-other suit is open to him for the establishment of the defense which he seeks-to make a cause of action. Since the abolition of the distinction between the jurisdiction of the court in respect to legal and equitable defenses it is the-duty of a defendant in an action, whether he has a legal or equitable defense, to set up both or either of them in the first action commenced relating to the-subject-matter. He cannot reserve an equitable defense, and then file a bill to restrain the prosecution of another, either legal or equitable, action. As-has been said in the case of Savage v. Allen, 54 N. Y. 458, the proposition, that a separate action may under our present system be maintained to restrain by injunction the proceedings in another suit in the same or another court between the same parties where the relief sought in the latter suit may be obtained by a proper defense to the former one, has long since been exploded, or, if not, should be without delay. The whole policy of the law is that suits shall not be maintained for the purpose of setting up defenses to alleged causes of action. Where a party has a defense he must set it up in answer to theeause of action alleged, and where an action is brought upon a cause of action the defendant is bound to set up his defense in that action, in order that it may be there tried, and not attempt -by a separate action to impede the-prosecution of the action first commenced. Therefore, as far as the consideration of the question 'of the propriety of the maintenance of this injunction in respect to the foreclosure actions is concerned, it is immaterial whether full relief could be granted to the plaintiff under his answer or not. He might have set up as a defense to those actions that which he now seeks to avail himself of, and if he did not set it up he cannot be allowed now to intervene- and prevent the trial of those actions in order that his defense thereto may be tried in a separate suit. The claim that the plaintiff will be compelled to try his defense in four separate actions is not ingenuously taken. It appears that, each and all of the foreclosure suits have been referred to a single referee, and that it was undoubtedly the intention of the parties that they should be tried-as one suit, and that there should not be separate trials in each. But, even, if the contrary were the case, after a party has allowed suits to go to issue- and to be ready for trial, it is tóo late for him to claim that the court shall take cognizance of a bill filed to establish his defenses to those actions upon the ground of preventing multiplicity of suits. If he was so anxious to avoid it he had an opportunity to bring his action at once when he was apprised of the claims made by the defendant in this action and plaintiff in the foreclosure actions, and he cannot rest and wait until the other cases are placed on trial, and then file his bill to prevent multiplicity of suits. It is not necessary to consider this question upon the merits as to whether a cause of action is made out by the complaint, or whether it is not. It is clear that the plaintiff has been guilty of loches if he has any cause of action which might be established as a defense to the bonds and mortgages in question, and it is also-equally clear that he was bound to set up this defense in this action, or he is forever barred from asserting it. We think, therefore, that the plaintiff has made out no cause whatever for the maintenance of this injunction, and that the order vacating the same was correct, and should be affirmed, with $10-costs and disbursements. All concur.  