
    Bradley Salt Co. v. Keating.
    
      (Supreme Court, General Term, Fifth Department.
    
    October 23, 1891.)
    Injunction—Restraining Actions at Law.
    Plaintiff sued defendant in the supreme court for damages for breach of a contract to sell goods, and defendant, after appearing in the action, sued plaintiff in the court of common pleas of New York city and county for a balance alleged to be due on the purchase price of the goods sold, and recovered judgment by default. Held that, even if judgment had not been entered in the court of common pleas, or even if the judgment were irregular for want of service, the supreme court had no power to restrain defendant from proceeding in that court, though his cause of action could be set off in the action brought by plaintiff.
    Appeal from special term, Erie county.
    The Bradley Salt Company brought an action in the supreme court of Erie county against Edward F. Keating for damages for breach of a contract to sell goods. Pending this action, the defendant brought an action in the court of common pleas of the city and county of New York against plaintiff for a balance alleged to be due on the purchase price of the goods sold, and judgment by default was entered therein. Plaintiff then moved the special term for an order restraining defendant from proceeding in the court of common pleas. The motion was granted, and defendant appeals. Beversed. For former report, see 15 N. Y. Supp. 158.
    Argued before Dwight, P. J., and Lewis and Macomber, JJ.
    
      Henry & F. C. McCloskey, for appellant. M. E. & E. M. Bartlett, for respondent.
   Lewis, J.

' The respondent commenced this action against the appellant, on the 26th day of September, 1890, to .recover damages against defendant for the non-fulfillment 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 New 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 New 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 counter-claim 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 Rob. (N. Y.) 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? Bespondent 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. Railroad 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. Trust Co. v. Hunt, 1 Code R. (N. S.) 1; Wright v. Delafield, 11 How. Pr. 465. The order appealed from was, we think, improperly granted, and it should be reversed, with $10 costs and disbursements of the appeal against the respondent. The motion is denied, with $10 costs. All concur.  