
    James W. Paige et al., Plaintiffs and Respondents, v. L. O. Wilson et al., Defendants and Appellants.
    1. An action by a creditor, to enjoin his debtor from making an assignment or disposing of his assets to the preference of other creditors, in violation of an agreement by which he had obtained credit from the plaintiff, and to have his assets appropriated pro rata between the plaintiff and other creditors, does not preclude the same creditor from bringing a subsequent action to recover judgment against the debtor upon the same indebtedness. The cause of action in the first case is upon an equitable demand triable by the court, and the costs are in the discretion of the court, and before the Code a court of law would have had no jurisdiction of the case. In the second case the cause of action arises upon express contract, is a legal demand, is triable by a jury and not by the court, and plaintiff’s right to costs is absolute, and a court of equity strictly would have had no jurisdiction of the case. These causes of action are not the same, within the rule that a former action pending for the same cause abates the present action.
    2. The Code does not establish any new rule of determining the identity of causes of action in this respect.
    (Before Bosworth, Ch. J., and Moncrief and White, J. J.)
    Heard, May 17;
    decided, June 1, 1861.
    Appeal from, a judgment recovered by the plaintiffs after a trial before Mr. Justice Hoeemas", and a Jury on the 8th day of May, 1860.
    The defendants, having become very largely indebted to the plaintiffs for goods sold, the debt falling due in the fall of 1857, procured from the plaintiffs, as the plaintiffs alleged, an extension of the time of payment, upon representations that their embarrassments were only temporary, and that by receiving an extension of credit, they would be able to make payment in full, or if not, that the plaintiffs should receive as large a proportion of their demands as any other of^the defendants’ creditors.'
    In 1858 the plaintiffs commenced an action in the Supreme Court of this State, in which their complaint, after alleging these facts, proceeded to state that the defendants had not paid any part of the plaintiffs’ demand, although they had paid some other creditors in full, and that they now threatened to make an assignment with preferences, postponing the plaintiffs’ demand to others.
    The relief demanded in the action in the Supreme Court, was that the defendants’ property be appropriated to the payment of their debts, in such a manner that no creditors who were such at the time of the extension, should receive a greater share than the plaintiffs, and for an injunction and a receiver.
    By a supplemental complaint, subsequently filed in the same action, the plaintiffs alleged that the defendants had meanwhile made an assignment of their property with preferences, and stated further facts as impeaching it, and demandedfor further relief that the assignment be set aside.
    While that action in the Supreme Court was pending, and before its trial, the plaintiffs brought the present action in this Court to recover judgment for the indebtedness which was the foundation of that action.
    The summons in this action was for a money demand, and the complaint in this action alleged that the defendants, L. O. Wilson & Co., by false representations, induced the plaintiffs, Paige & Co., to extend the credit, or time of payment, on their demand for goods sold, which fell due in the fall of 1857 ; and it demanded judgment for the amount due.
    The answer alleged, for a third defense, “that the plaintiffs, before the commencement of this action, commenced an action against the defendants in the Supreme Court, for the same cause of action and debt, which are the subjects of this suit and of said complaint, and said former action is now pending and undetermined.”
    The defendants’ Counsel gave in evidence the pleadings in the action pending in the Supreme Court, and thereupon moved to dismiss the complaint in this action, on the ground that the whole debt, part of which was claimed in the action aforesaid in the Supreme Court, was due when that action was commenced, and should have been included in that suit, and that this action, subsequently commenced for another part of the debt, could not by reason of the premises be maintained.
    The Court overruled such motion and refused to dismiss the complaint, to which decision and ruling the defendants’ Counsel duly excepted.
    The Jury rendered a verdict in favor of the plaintiffs for the amount claimed.
    From the judgment entered upon this verdict the defendants appealed.
    
      Wm. C. Traphagen and James T. Brady for the appellants.
    
      The whole debt from Wilson & Co. to Paige & Co., was due when the first action was brought, and not having been claimed in that action cannot be recovered in this, the defense of such former suit being specifically set up in an ■ answer. (Bendernagle v. Cocks, 19 Wend., 207 ; and see 16 N. Y. R., 549 ; 16 Johns., 136.)
    
      David Dudley Field, for the respondents.
    The only question raised on the trial related to the pendency of another action between the same parties. The defense stated in the answer was, that another action was pending between the same parties for the same cause. The defense stated on the trial was not that the former action was for the same cause, but ought to have been. It is a sufficient reply, that the defense in the answer was abandoned at the trial, and that the defense taken at the trial was inadmissible, because not in the answer. But there was a better reply still. The former action was "for a different cause. Its purpose was to enforce an alleged agreement of the defendants not to make preferences between their creditors, and to procure a distribution of their property equally among their creditors. (Ward v. Dewey, 12 How. Pr., 193.)
   By the Court—Bosworth, Ch. J.

The defendants in the third head of their answer aver, “that the plaintiffs, before the commencement of this action, commenced an action against the defendants in the Supreme Court, for the same cause of action and debt which are the subjects of this suit and of said complaint, and said former action is now pending and undetermined.” The practical question is, “Did the defendants establish, at the trial, the truth of this averment?”

The cause of action in the suit before us, arises upon ■express contract, is a legal demand, is triable by a Jury and not by the Court, (Code, § 253,) and the plaintiffs’ right to costs is absolute, on judgment being entered on the verdict. (Id., 304, sub. 4.) The old Court of Chancery would have no jurisdiction of it.

The action in the Supreme Court is upon an equitable demand, is triable by the Court, (Code, § 254,) and the ■ costs of it can be awarded according to the discretion of the Court. A Court of Law, prior to the Code, would have no jurisdiction of it.

The action in this Court is brought to recover a judgment for money, eo nomine, et in numero. The action in the Supreme Court, is brought to compel an application of the property which the defendants had in October, 1857, to the payment, pro rateo, of the debts then owing by them and previously contracted, whether then due or to become payable afterwards. That action was brought on behalf of the plaintiffs, and all other creditors who might come in and contribute to the expenses of it.

It is indeed true, that the Code abolishes all forms of pleading theretofore existing, (§ 140,) and that when an answer is put in, the Court may grant to the plaintiff, “ any relief consistent with the case made by the complaint, and embraced within the issue.” (Id., § 275.)

Marquat v. Marquat, (2 Kern., 336,) favors the idea, that the plaintiffs may have judgment in the action in the Supreme Court, for the amount of their debt, although they fail to prove the facts alleged and relied upon to establish a right to the relief specially prayed for in the complaint in that suit. If this be so, then, if on a trial of that action, the Court should refuse to give such a judgment, and if the plaintiffs instead of appealing should commence a suit like the present, the question would arise whether such judgment would be a bar, as presenting a case of res adjudicatco.

But it may be that the plaintiffs’ present position is not so unfavorable as it would be in the case supposed. The former suit has not been tried. At all events there is no evidence of it in the case before us. And if the system existing when the Code was enacted was now in force, and the suit in the Supreme Court had been in the Court of Chancery, I think it quite clear, that a dismissal of such a bill by the Court of Chancery would not be a bar to the present action.

The causes of action in the two suits are not the same, within any rule of testing and determining their identity, established prior to the Code. No new rule on that subject has been enacted by the Code.

Although the Supreme Court may, perhaps, be competent to grant relief in the action in that Court, which the old Court of Chancery could not give on a bill containing the same allegations of fact as are found in the complaint in the Supreme Court, yet it does not necessarily follow that the causes of action stated in the complaints in these two suits must be held to be the same, when they clearly would not have been prior to the Code.

■ Where the cause and object of both actions is the same, a judgment in the prior bars the subsequent suit. But, where the cause or object of the actions is different, the prior judgment is no bar to the subsequent suit; although any point common to both and actually determined in the first, would conclude the parties in respect to it in the second suit. (2 Cow., Hill., and Edwards’ Notes, vol. 2, p. 18, note 1.)

As a dismissal of a bill in Chancery containing the same allegations as the complaint in the Supreme Court, would not be a bar to the second, the pendency of such an action as the former would not abate a suit, like the present, subsequently brought.

We, therefore, conclude, that the two suits are not for the same cause of action, within the meaning of the rule that makes the suit first brought a sufficient matter for abating the second, and that the judgment should be affirmed.  