
    Smith v. College of St. Francis Xavier et al.
    
    
      (Superior Court of New York City, General Term.
    
    July 5, 1892.)
    Stay of Proceedings—Another Action Involving Same Question.
    A stay of proceedings will not be granted in an action in the superior court to await the determination of a prior action in the supreme court involving the same subject-matter, where the parties to the two actions are not identical, and the complaint in the supreme court case alleges additional matters, and the prayer asks for more than is sought in the superior court case.
    
      Appeal from special term.
    Action by Thomas C. Smith against the college of St. Francis Xavier and others. From an order denying the motion of defendant Mary Lavette for a stay of proceedings pending the determination of a similar action in the supreme court, said defendant appeals. Affirmed.
    At special term, on the denial of the motion, Gildersleeve, J., filed the following opinion: “I do not think this action and the one in the supreme court are identical. The papers before me do not disclose a state of facts that warrant the granting of a stay in this action preceding the determination of the supreme court action. It will not be denied that, where two suits are commenced in different courts, and the subject of the action and the parties are the same in each, the court which first acquires jurisdiction should dispose of the whole matter. McCarthy v. Peake, 18 How. Pr. 138. But the parties to these two actions are not the same, inasmuch as John Gorman, who appears as one of the defendants in the supreme court case, is not mentioned in the superior court suit. What his interest is, does not appear; but the fact remains that the parties to the two suits are not identical. It is true that the property involved is the same in both actions, but that is not a sufficient reason for granting the stay. Stowell v. Chamberlain, 60 X. Y. 272; Bawley v. Brown, 79 X. Y. 398-400. It is also true that all the relief demanded in the superior court case, which is the junior action, is demanded in the supreme court case, but the complaint in the latter case alleges additional matter, and the prayer asked for more than is sought in the superior court case. The same evidence would not support both actions, inasmuch as more evidence would be required in the supreme court case than would be necessary in the superior court case. See Stowell v. Chamberlain, supra. To sustain a plea of former action pending, which is governed by the same principle as a motion for a stay, (Bawley v. Brown, 79 X. Y. 400,) it is necessary that it appear that the first action is for the identical relief demanded in the second action, (Bawley v. Brown, supra; Kelsey v. Ward, 16 Abb. Pr. 102, 103, affirmed 38 X. Y. 83.) So closely has this rule been enforced that in the case of Kelsey v. Ward, supra, which is quoted with approval by the court of appeals in the case of Bawley v. Brown, supra, it was held that the pendency of actions for rent alleged to be payable quarterly was no defense to an action for the same rent under a claim that it was payable at the end of the year. Under the circumstances, the motion for stay is denied, without costs. ”
    Argued before Freedman and Dueño, JJ.
    
      A. B. Johnson, for appellant. George Bliss, for respondent.
   Per Curiam.

The order should be affirmed, with $10 costs, etc., upon the opinion filed by the learned judge below.  