
    The Bradley Salt Co., Resp’t, v. Edward F. Keating, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1891.)
    
    Stay—Cross action.
    After the commencement of this action for non-fulfillment of a contract of sale and an appearance by the defendant, the latter commenced an action in the New York common pleas against this plaintiff to recover the balance of the purchase price, and entered judgment by default. Held, that the supreme court had no power on motion to stay proceedings in the common pleas; that if the judgment was to be set aside for want of proper service, the motion should be made in that court.
    Appeal from an order of the Erie special term, restraining the defendant during the_ pendency of this action from prosecuting any action for any cause of action which could be set off or made a counterclaim in this action, and especially from proceeding with a certain action alleged to have been commenced by the defendant against the plaintiff in the court of common pleas of the city and county of New York.
    
      M. E. & E. M. Bartlett, for resp’t; Henry & F. C. McCloskey, for app’lt.
   Lewis, J.

The respondent commenced this action against the appellant on the 26th day of September, 1890, to recover damages against defendant for the unfulfillment of a contract between the parties for the sale by the defendant to the plaintiff of a quantity of salt works fittings or supplies. The place of trial is in the county of Wyoming.

The defendant appeared in the action; the complaint had not been served at the time of granting the order appealed from.

After the commencement of this action, and after his appearance therein, the appellant commenced an action against the respondent in the court of common pleas of the city and county of Hew York to recover the balance of the purchase price claimed to be due from the respondent for said goods sold.

He caused judgment to be entered by default against the respondent in that court for the sum of $1,017, and issued execution to collect the same.

Forming part of the judgment roll was the affidavit of one John E. Hogan, showing that he served the summons and complaint in that action by delivering the same to Walter H. Bradley, the treasurer of the defendant in that action, in the city of Hew York on the 7th day of October, 1890.

The plaintiff in this action moved this court at a special term thereof, held in the city of Buffalo, for the order appealed from.

It was made to appear by the papers read upon the motion to the satisfaction of the court that the summons and complaint in the common pleas action were not in fact served upon the defendant therein; that the judgment was irregularly entered.

The order appealed from was granted enjoining defendant from prosecuting any action for any cause of action which could be set off or made a counterclaim in this action, and especially from proceeding in the action in New York.

Courts of equity have frequently restrained the prosecution of actions in that court, when the subject matters in dispute could all be adjusted in a pending action between the same parties.

And the same power has been exercised in actions at law where there were special equitable grounds warranting the exercise of the equity powers of the court.

It is a general rule that equity will not restrain an action at law where the plaintiff has only a legal defense. Liftchild v. Smith, 7 Robt., 306 ; McCarthy v. Peake, 9 Abb. Pr., 164.

The appellant commenced his action in a court having jurisdiction of the subject-matter; this he had a legal right to do, and we fail to see that he violated, in so doing, any legal or equitable right of the respondent.

It is true that the whole controversy can be adjudicated in the Wyoming county action, but what equitable right of the respondent is violated by allowing the appellant to proceed to collect his judgment?

Respondent prefers that the questions should be tried at its home.

The appellant naturally wishes to carry on the litigation at his home.

There is still another reason why the order should not have been granted; judgment had been entered against the respondent in the common pleas court. True, the special term court was satisfied by the papers read upon the motion that it was irregularly entered, that that court never got jurisdiction of the defendant in that action, but the special term of the supreme court was not the tribunal to adjudicate that question; the common pleas court should have been moved to correct or vacate its judgment N. Y. & H. R. R. Co. v. Haws, 56 N. Y., 175.

The appellant having a judgment in a court of co-ordinate jurisdiction with the supreme court, it was not in the power of the supreme court upon motion to stay proceedings in that court; if the New York action was to be stayed by the supreme court, an equitable action should have been instituted for that purpose.

Where a defendant brings a cross action upon the same matter set up in his answer, a motion to compel him to elect either to abandon his answer or his cross action should be made in the cross action. Farmers' Loan & Trust Co. v. Hunt, 1 Code Rep., N. S., 1 ; Wright v. Delafield, 11 How., 465.

The order appealed from was, we think, improperly granted, and it should be reversed, with ten dollars costs and disbursements of the appeal against the respondent. The motion is denied, with ten dollars costs.

Dwight, P. J., and Macomber, J., concur.  