
    Fraley & Carey Company, Respondent, v. Frank C. Delmont, Appellant, Impleaded with The Municipal Court of the City of Rochester and Others, Defendants.
    Fourth Department,
    January 17, 1906.
    Equity — Supreme Court will enjoin separate actions on installments' due to prevent multiplicity of suits— when issues will not be determined in equity. , ,
    When a contract for the sale of goods provides that the vendee shall pay a certain sum down and the balance in monthly installments, and the vendee has •• been sued by the vendor in.a Municipal Court for the first payment and certain Subsequent installments, and the vendee has taken a new trial in the County Court from an adverse judgment, which riew trial is pending, the Supreme Court", in an equitable action by the vendee on security given, will, in order to prevent a multiplicity of suits, restrain the prosecution of separate actions in the Municipal" Court by the vendor for monthly installments as they -fall due pending the new trial in the County Court.. '
    But, in.such equitable action, the vendee will not be allowed to litigate the merits of its defense, for the vendor had a right to bring his action in the Municipal Court, which had jurisdiction to determine,the issue.
    Appeal by the defendant, Frank C. Delmont, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office ■of the clerk of.the" county of Monroe on the 22d day of April, 19Ó5, upon the decision of the court rendered-after a .trial at the Monroe Special Term. • ; . ~ -
    
      Frederic Remington, for the appellant. •
    
      C. C. Werner, for the respondent.
   Spring, J.:

In March, Í904; the parties to the action entered into ¡an agreement, pursuant to which the defendant installed a soda fountain in the store of the plaintiff. He was to, receive therefor the sum of $700, of which the sum of $200 was to be paid when the soda fountain was in place, and the balance in successive monthly payments of $15 each. In August, 1904, the defendant Delmont commenced an action in'the Municipal Court of the city of Bochester to recover said sum of $200, and also five monthly installments alleged to be due by virtue of the agreement. Issue was joined, á trial had on the merits^ and on September twenty-ninth judgment- was rendered in' favor of the plaintiff therein for the amount claimed. Imrnediately thereafter another action was commenced in the Municipal Court by the present defendant to recover another monthly payment.

• About the fourth of October the present action was commenced and an injunction granted restraining the commencement of any other action to collect any of said installments thereafter to mature, and also from prosecuting the action then undetermined in the Municipal Court until the further order of the court. The Municipal Court of"the city of Rochester and the two judges of that court were made parties defendant and enjoined from continuing the action pending in .that court or from proceeding with any other action for the maturing installments.

FTo appeal had been taken from the judgment recovered in the Municipal Court, and the injunction order did not restrain the enforcement of that judgment and the complaint did not ask that its enforcement be stayed. Later an appeal for a new trial was taken to the County Court from the Municipal Court judgment, and was pending at the trial of this action. An amended complaint was served, Setting forth the appeal for a new trial in the County Court, and in the prayer for judgment, excepting from any relief desired the judgment of said Municipal Court, and the same exception was contained in the prayer for relief in the original complaint. The complaint also asked that the- defendant be enjoined from commencing any actions until the hearing and determination of the appeal from the judgment in the Municipal Court and until the hearing and determination of this action.”

The court possessed the power to restrain the commencement of other actions to collect installments as they matured each month. (Norfolk & N. B. Hosiery Co. v. Arnold, 143 N. Y. 265 ; Erie Railway Co. v. Ramsey, 45 id. 637.)

In the action pending in the County Court the rights, of the parties could be determined and its judgment would be conclusive as to the unpaid installments. For the purpose of avoiding a multiplicity of actions it was a proper exercise of judicial authority to withhold the commencement of other actions until the final determination of the one in the County Court if adequate security for the protection of the present defendant had accompanied the injunction order. While the present action in equity was commenced primarily for the purpose of restraining these many actions, which it is alleged in the complaint the defendant or his attorney threatened to commence, yet it sets forth his failure to comply with the agreement and asks that the merits be determined in this suit except as to the judgment already rendered by the said Municipal Court.” The 'court' upon the trial declined, upon the application of the defendant, to limit the' plaintiff to the equitable issues raised by the pleadings, but permitted it to litigate the question as to the defendant’s failure to comply with the agreement. The decision and judgment determined that the defendant failed and neglected to fulfill his said contract with the plaintiff, and is not entitled to recover from the plaintiff any part of the purchase price of said soda fountain.” It also restrained the defendant from commencing any further action or from prosecuting those now pending and directed their dismissal, and it alsq' dismissed the complaint as to the Municipal Court of the city of ¡Rochester and the said Municipal Court judges.

The relief granted was too sweeping. The defendant Delmont properly commenced his first action in the Municipal Court. It had jurisdiction of the parties and of the subject-matter. The amount demanded was sufficient for an. appeal to be taken for a new trial in the County Court. The plaintiff herein elected to avail itself of that privilege, and thus assented to the determination of' the questions involved in that tribunal. The point at issue was simply whether the plaintiff in that action had performed his agreement. The.contract fixed the price for the work and the times of payment, .and the claim ■ of defendant is that, by reason of the failure to perform, no recovery at all can be had. There is, therefore, no difficulty in disposing of the issue raised in the County Court and the facts can be determined by a jury. The present plaintiff apparently commenced the present action' expecting that the action in the County Court would be tried and the rights'of the parties settled there, and we can see no reason for permitting it to abandon this intention. The courts are very chary in restraining the prosecution of a pending action. Where all the parties are not before the court, or wheré the issues involved cannot be disposed of in the action at law, its prosecution may be stayed and the issues determined in an equity action. We do not find any authority, however, for restraining an action at law in which all the issues involved may be fully determined and relegating those issues to a suit in equity. As was said in 143 New York, 265, supra (at p. 268) : “ The jurisdiction of a court of equity by action to restrain proceedings in actions pending in courts of law should be sparingly exercised, and only when other remedies are inadequate and the equities invoking its jurisdiction are apparent and strong.”

Ordinarily, a person in bringing an action may choose his tribunal if it has jurisdiction. His election will not be interfered with unless for some important reason, and none existed in this case. x

We do not discover that there was any necessity for trying the present action. The temporary in junction staying the commencement of any further action in the premises protected the plaintiff from being harassed and mulcted in costs by frequent litigation. The trial and determination of the action in the County Court will détermine the rights of the plaintiff, and, that accomplished, the purpose of a suit in equity will be attained.

" We see no necessity for a new trial, and final judgment should be directed containing, in lieu, of the provisions in the judgment appealed from, the following directions: First: The dismissal of the judgment against the Municipal Court of the city of Bochester and the two judges of that court. Second. By striking' out that portion which disposes of .the merits of the controversy between the parties and which dismisses the actions now pending in'the County Court and in the Municipal Court. Third. ’ By restraining the defendant from commencing any further action to collect the unpaid installments or from prosecuting the action pending in the Municipal Court until the termination of the pending action in the County Court, or until the further order of the court, and providing that the plaintiff gives. adequate security to protect the defendant Delmont. Fourth. The appellant should hake the costs and disbursements of this appeal and no costs should be allowed to either party in the court below.

A memorandum will be filed providing in detail the form of the final judgment.

All concurred.

Final judgment directed, with costs to appellant, in accordance with memorandum filed with the clerk.  