
    William L. Johnson, Plaintiff, v. The Victoria Chief Copper Mining and Smelting Company, et al., Defendants.
    (Supreme Court, New York Special Term,
    September, 1908.)
    Injunction — Preliminary injunction — Grounds and matters considered —‘Acts in respect to which no final judgment is prayed.
    The prosecution of an action pending in a foreign territory against defendants two of whom reside .there and affecting real estate located there may not be stayed in an action brought in this State for a partnership accounting even though it be between the same parties.
    Plaintiff, a resident of Kentucky, claiming that he and. certain of the defendants formed a partnership for the acquisition and development of mining properties and that his alleged partners had transferred to the corporation defendant, which his partners had organized, a portion of the property located in New Mexico affected by this action, brought an action for a partnership accounting. After the commencement of said action plaintiff by proceedings instituted in New Mexico against the company and others sought relief in the partnership action by way of an ancillary bill of complaint. Demurrers to the bill were sustained and after the filing of an amended bill the suit was discontinued without prejudice. Thereupon the company commenced an action in New Mexico against the plaintiff herein and two other defendants, residents of New Mexico, and by a complaint alleging corporation ownership of certain mining claims and real property located in said territory and that the defendants made an adverse claim thereto in said suit, sought to have its title forever quieted and set at rest. The plaintiff herein filed no supplemental bill of complaint in which injunctive relief was sought. Held that his motion for an injunction restraining further prosecution of the action brought by the corporation in New Mexico based upon affidavits alone will be denied.
    Motion for an injunction.
    Hornblower, Miller & Potter (Charles A. Boston, of counsel), for plaintiff.
    M. E. Harby, for defendants Victoria Company, Hopper, Bigelow and Dickinson.
   Erlanger, J.

Plaintiff applies for an order enjoining, restraining and prohibiting the defendant Victoria Chief Copper Mining & Smelting Company, pending this suit, from further prosecuting the action instituted by it in the District Court of the Third Judicial District for the county of Sierra, territory of New Mexico, against William L. Johnson (plaintiff in this action), John Gardner and Stephen J. Macy therein named as defendants, the said Johnson and the said Gardner not having appeared in said suit nor submitted to jurisdiction of the court, nor been served with process therein within said jurisdiction. The present action is brought for a partnership accounting, the plaintiff claiming that he and defendants Hopper and Bigelow formed a co-partnership for the acquisition and development of mining properties. Plaintiff contends that his former copartners transferred to a corporation which they formed under the laws of Arizona, the said Victoria Company, a portion of the property affected by this suit The property so transferred is located in New Mexico. After the commencement of this action plaintiff instituted proceedings in New Mexico against the said company and others, and therein sought, by means of a so-called ancillary bill of complaint, relief in aid of this action. Demurrers to that bill were sustained, and after the filing of an amended bill the suit was discontinued by order of court, without prejudice. Thereupon the Victoria Company commenced an action in New Mexico against this plaintiff, John Gardner and Stephen J. Macy, the latter two being residents of said territory, the plaintiff being a resident of Kentucky. In the complaint filed by the Victoria Company it alleges its ownership of certain mining claims and real property located in said territory, and avers that -the defendants in said suit made an adverse claim thereto, and it seeks to have its title forever quieted and set at rest. The plaintiff now makes this motion in this action to enjoin the prosecution of the New Mexico suit. No supplemental bill of complaint has. been filed by the plaintiff herein in which injunctive relief is sought, but he seeks redress upon affidavits alone. An injunction can only issue where it appears from the com- ' plaint that the plaintiff is entitled to a judgment restraining the commission or continuance of the act complained of, or where the defendant is doing an act respecting the subject of the action tending to render the judgment ineffectual. Code Civ. Pro., § 604. The prosecution of an action pending in this State cannot be stayed on motion made in another suit, even though it be between the same parties. Belasco Co. v. Klaw, 98 App. Div. 74; Gilroy v. EversonHickok Co., 120 id. 207; Leonard v. Schmidt, 109 id. 549— 551. This doctrine should certainly be enforced where the suit sought to be enjoined is commenced in a foreign territory against defendants, two of whom reside there, and affecting real estate located there. My attention is called by the plaintiff to the case of Locomobile Co. v. American Bridge Co., 80 App. Div.. 44, but that case was brought specifically for the purpose of enjoining a suit in a foreign State. He also relies on Julian v. Central Trust Co., 193 U. S. 93, and in that case it appears from the statement of the facts that a supplemental bill was filed for the purpose of securing an injunction. See p. 112. So in Prout v. Starr, 188 U. S. 537, a similar bill was filed, and the question came up on demurrer to the supplemental bill. And likewise in Starr v. Chicago, etc., Co., 110 Fed. Rep. 3, a supplemental bill was filed under the principle sought to be invoked in this action. The defendants press upon the court the objection that this question be disposed of before the merits are considered. I think the objection is well taken. It becomes, therefore, unnecessary for me to pass upon the interesting propositions of law so exhaustively and ably argued.

Motion denied.  