
    Beecher Ogden, Appellant, v. Pioneer Iron Works, Respondent.
    
      An action brought to recover liquidated damages for a failure to complete work within a term specified in a contract—it will not be stayed to await the decision in an action previously brought to recover a balance due on the contract — it is not obligatory on a party to set up a cause of action by way of counterclaim — action brought to forestall another, by a prior trial.
    
    The Pioneer Iron Works brought an action .against the H. W. Johns-Manville Company to recover a balance alleged to be due under a contract by which the Pioneer Iron Works agreed' to construct a steam asphalt roofing plant. The-Johns-Manville Company set up as a defense, but not as a counterclaim, the failure of the Pioneer Iron Works to complete the plant within the time specified in the contract.,
    Subsequently the Johns-Manville Company assigned to' one Ogden its claim for liquidated damages provided for by the contract arising from the failure of the Pioneer Iron Works to complete the contract within the time specified therein. Ogden then brought an action against the Pioneer Iron Works upon the claim assigned to him, and before any answer had been served in the action the Pioneer Iron Works obtained an order staying the proceedings in the action until the determination of the prior action.
    
      Held, that it was improper to grant a stay in advance of thé joinder of issue;
    That it was also improper to grant the stay for the reason that the determination of the action brought by the Pioneer Iron Works would not determine the action sought to be stayed;
    That the Johns-Manville^Company was not obliged to set up by counterclaim in . the suit brought against it by the Pioneer Iron Works its claim for damages ’ on account of the delay in the performance of the contract;
    That the fact that Ogden brought his action in Queens county because the condition of the calendar was such that a speedier trial could be there obtained than in Kings county where the action commenced by the Pioneer Iron Works was brought, and that the Ogden action was brought in order to forestall the trial of the claim on the contract by a prior trial of the claim for damages, did not entitle the Pioneer Iron Works to a stay of proceedings in the action brought by Ogden.
    Appeal by the plaintiff, Beecher Ogden, from an order of the Supreme Court, made at the Kings County Special Term and entered in' the office of the clerk of the county of Q.ueens on the 27th day of November, 1903, staying all proceedings on the part of the plaintiff until the determination of, and entry of judgment in, another action pending in the'Supreme Court in which the Pioneer Iron Works is plaintiff and the H. W. Johns-Manville Company, the alleged assignor of Beecher Ogdén, is defendant.
    
      
      Robert B. Honeyman, for the appellant.
    
      Albert G. McDonald, for the respondent.
   Hirschberg, P. J. :

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. I can see no essential difference between the facts in this cáse and those in Dolbeer v. Stout (139 N. Y. 486) in which the court said (p. 489): “ We find no authority justifying the staying of proceedings in one cause until the determination of another cause pending in another court where the party against' whom the stay is sought is neither a party nor privy to such other action and would not be bound by any adjudication therein.” In that action the plaintiff ■was the assignee of a claim for storage charges under a contract. A prior action .had been brought by the defendant against the plaintiff’s assignors to recover damages for the breach of the contract of storage, and it was held that the proceedings in the second action could not be restrained, notwithstanding the defendant in that action-set up by way of counterclaim the same claim for damages as that on which he had sued. The decision was placed upon the lack of power in the court to stay the plaintiff’s suit under these circumstances. The court further said (p. 489): “ Where the decision in one action will determine the right set up in another action and the judgment on one trial will dispose of the controversy in all the actions, a case for a stay is presented, but the power exercised by the Special Term in this case is, so far as we can ascertain, without precedent, nor does it seem supported by reason. (See Travis v. Myers, 67 N. Y. 542 ; Third Ave. R. R. Co. v. Mayor, etc., 54 id. 159 ; People v. Wasson, 64 id. 167 ; De Groot v. Jay, 30 Barb. 483.)’

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 to set up in that action (the one brought by Gallaudet) his ' claims against Gallaudet for money collected as his agent, which form the subject, of the present action, nor to avail himself of the credit which Gallaudet proposed in his complaint to give him. 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 by Gallaudet to such matters as would defeat Gallaudet’s claims set up in that action. * * * It was not in the power of Gallaudet, by bringing the first action, to disable Brown from suing him. Brown had the right to take the position that all the claims of Gallaudet were groundless and to institute his own action for the moneys collected by Gallaudet as agent.”

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.  