
    COURT OF APPEALS.
    Oneida County Bank agt. Herrenden and others.
    
      Action — In United Statescov/rt noiar to another, in a state court — Oonmrrent.* remedies — When a plaintiff entitled to.
    
    That an action upon contract is ^pending in the United States court, is no barr to another action in a state court to enforce the same cause of action.
    
      
      Decided January, 1886.
    
      James S. Sherman, for appellant.
    
      Nicholas H. Neman, for respondent
   Danforth, J.•

-The question upon this record, stated most favorably to the appellant, is whether the pendency of an action upon contract in the United States circuit court is good ground for setting aside the service of a summons, issued in a court of, .this state, to enforce the same cause of action. As to it, the courts below have differed. We agree with the general term. At common law the pendency of another suit for the same cause could, at most, only be pleaded in abatement; but, where the former action is in a court of the United States or a sister state, it is no stay or bar to a suit- in the courts of this state. A recovery in one might be pleaded to the further continuance of the other; but, until that was obtained, both might proceed to judgment and execution, when a satisfaction of either would require a discharge of' the other (Walsh agt. Durkin, 12 Johns., 99; Mitchell agt. Bunce, 2 Paige, 620), and the rule is the same since the Code (Burrows agt. Miller, 5 How. Pr., 51; Cook agt. Ditchfield, 5 Sandf., 330)

That the first action was commenced in a state court by service upon one of several joint contractors, and removed by him into the United States court, and the second action afterwards commenced by the service of a summons upon a different defendant, cannot relieve that defendant The plaintiff is entitled to all the remedies provided by law for the collection .of its debt, and need not be satisfied until it has had such a judgment as will bind the defendants individually as well as jointly. It might perhaps proceed in the same suit against the other defendants (U. S. R. S., sec. 639, subd. 2) in the state court, or, after judgment against all in such form as would bind the joint property, take proceedings to charge the defendants not personally summoned. It was not bound to do either, but might, as in this instance, commence a new action (Lane agt. Salter, 51 N.Y., 1; Money agt. Tracey, 92 id., 581).

We think the order appealed from should be affirmed.

All concur, except Miller, J., absent.  