
    AUDITORIUM CONDITIONING CORPORATION v. CARRIER CORPORATION.
    District Court, S. D. New York.
    Dec. 27, 1943.
    Harold L. Herzstein, of New York City, for plaintiff.
    Putney, Twombly & Hall, of New York City (Lemuel Skidmore, of New York City, of counsel), for defendant.
   CAFFEY, District Judge.

The above action, pending in this court, for convenience will be called the Federal case. The derivative action brought by stockholders of Auditorium Conditioning Corporation, entitled Ross Industries Corporation et al. v. Bentley et al., pending in the State court, for convenience will be called the State case.

In the Federal case recovery is sought for royalties on patents alleged to be owing and for specific performance of an agreement alleged to have been made to transfer other patents. In the State case the same claims and additional claims are sued on.

Carrier Corporation, sole defendant in the Federal case and one of several defendants in the State case, has moved in both actions for the same relief. What is prayed for in the Federal case constitutes relief upon everything counted on in that case; but only part of what is relied on in the State case. The motion in the State case was made first. This is for judgment on the pleadings, pursuant to Section 476 of the Civil Practice Act, and was argued before Mr. Justice Benvenga two days before oral argument was presented to me in the Federal case. In both actions decisions were reserved. As yet no decision has been rendered in the State case.

It seems to me manifest that (1) comity requires that I await a decision by Judge Benvenga; (2) that only by my waiting can confusion certainly be avoided; (3) that it is in the interest of both sides alike that the proceedings be conducted in such way as to avoid conflict between the courts; (4) that if the State court grant the relief sought from it in the motion now pending before it, there will be no occasion for me to determine the issues in the Federal case; (5) that counsel should furnish me copy of Judge Benvenga’s decision promptly after it is rendered; (6) that during the interim the existing status with respect to examinations before trial and subpoenas should be preserved; (7) that, upon receipt by me of the decision in the State case, I should resume consideration of the motion pending in the Federal case and, in the light of the State case decision, then dispose of that motion.

In so far as I can foresee, for the present, there is no occasion for me to enter an order. If, however, controversy should arise, I shall be glad to hear counsel.  