
    RATZER v. RATZER.
    N. Y. Supreme Court, First Department; Chambers,
    October, 1877.
    Supplemental Answer.
    Where there are two proceedings pending between the same parties for the same cause of action, the pendency of the proceeding first commenced, is a defense to the one last commenced.
    In such a case, leave to file a supplemental answer in the action first commenced, will not be granted where the matter proposed to be pleaded, being a decision in the second action, cannot be a bar to the first action.
    Motion by defendant for leave to file a supplemental answer.
    This action was brought by John Ratzer, Sr., against John Ratzer, Jr., and others to compel the defendant, John Ratzer, Jr., to account for the proceeds and profits of certain contracts made by him with certain brewers, the other defendants, in the city of New York, for the purchase of brewer’s grains.
    The complaint was dated November 2, 1874, and the answer, December 21, 1874. The trial was had April 5 and 6, 1875, and the findings were that the father, the plaintiff, for a long time previous to the suit, was carrying on the grain business which he had organized and carried on under the name of Ratzer Bros.; that the son, John Ratzer, Jr., the defendant, for some years previous to October 1, 1874, was in the employment of his father in that business, one branch of which was the making annual contracts; that without notice, he procured these contracts in his own name and for his own benefit.
    Judgment was rendered on May 19, 1875, that the contracts were the father’s, and the son had no interest in them, and should deliver them up ; that an in junetion should issue ; that the father recover of the son the gains and profits; and that it be referred to a referee to take an account of the gains, and report thereon; and that the defendant, John Ratzer, Jr., pay the amount thereof to the plaintiff; and that, when said amount was ascertained, the plaintiff have judgment therefor, with costs.
    A referee was thereafter appointed, and the reference was still being proceeded with before him, when this motion was made.
    On March 16, 1875, after this action was at issue, and a few weeks before it came to trial, John Ratzer, Jr., the defendant in this action,'together with Joseph Ratzer, one of his brothers, filed a bill in the court of chancery, in the State of New Jersey, against their father, John Ratzer, Sr., the plaintiff in this action, and their mother and other brother, Felix Ratzer. The bill set forth that the three brothers had the very business claimed by the father in this suit; that the father and the mother, with the consent of the sons, as trustees, received the profits, and the father had invested them in lands, taking the deeds in his own name with like consent; that he had no interest in the business, but claimed that he owned it. Declaration was prayed, that the father was trustee for the copartners, and should account. The suit was tried upon the merits at great length, and argument was had before the chancellor of the State of New Jersey, who, in an opinion attached to the moving papers, decided that the said business was the business of the Ratzer Brothers, and that the plaintiff, John Ratzer, Sr., had no interest therein ; but the- decree had not been entered at the time of this motion, although the necessary steps were being taken to perfect the judgment.
    This motion was made by the defendant, John Ratzer, Jr., that he might have leave to file a supplemental answer, setting up the decree of the court of chancery of the State of New Jersey, and that all proceedings of the plaintiff before the referee be stayed in the mean time.
    
      Robert Gilchrist, for the motion.
    I. Plaintiff or defendant may be allowed to make a supplemental complaint, answer or reply, alleging facts material to the case, occuring after the former pleading, &c. (Code, § 177).
    
    II. The New York decree was a mere interlocutory order—a proceeding in fieri—open to be reversed by the court which made it, at any time, and against which a bill of review will not lie. The order for an accounting and for a judgment, when the amount is ascertained, makes the decree interlocutory (1 Van Santnoord's New York Equity Practice, 513, 519, 520 ; Jenkins v. Eldredge, 3 Story C. Ct. 302, 307, 314, 318, 319 ; and many New York cases cited in notes 2 and 3; Travis v. Waters, 1 Johns. Ch. 85; S. C., 12 Id. 500 ; D’lvernois v. Leavitt, 8 Abb. Pr. 59; McMahon v. Allen, 7 Id. 1; Lawrence v. Farmers’ Loan & Trust Co., 15 How. Pr. 57; Humiston v. Stainthorp, 2 Wall. 106 ; Fourniquet v. Perkins, 16 How. (U. S.) 82, 83, 86. S. P., 4 Wash. C. Ct. 84, 86 ; Staunton v. Oldham, 2 Atk. 383 ; Smith v. Haskins, Id. 385-7; Harrison's s Pr. 7 Eng. Ed. 622).
    III. Any new matter ma.y be set up even after decree pro confesso, or interlocutory decree, at any time, in bar of the final decree, to be given (Scott v. Grant, 10 Paige, 485; Jenkins v. Eldridge, supra; Mitford's Pleading, 6 Am. Ed. from 5 London Ed., 101 [85], note 2; Bowen v. Irish Presb. Cong., 6 Bosw. 259). An interlocutory decree, though appealable in England and New Jersey, is open for reversal, on appeal from a final decree, and follows the fate of the final decree (Attwood v. Small, 6 Cl. & F. 234, 307, 309; Terhune v. Colton, 1 Beasley [N. J.] 318. In New York it must be so, as an interlocutory decree is not appealable (Le Guen v. Gouverneur, 1 Johns. Cas. 498. S. P., Jaques v. Methodist Ch., 17 Johns. 548 ; Kane v. Whittick, 8 Wend. 238, 241; Palmer v. Hutchins, 1 Cow. 42, and note; Mansel on Law and Practice of Demurrer, &c., p. lxxxiii (10 vol. of Law Library); Hoyt v. Sheldon, 4 Abb. Pr. 64, 69 ; Mitf. Eq. Pl. 392 [329]). The court will relieve on terms if there has been laches (Madison Ave. Ch. v. Baptist, 2 Robt. 643-4; Bate v. Fellowes, 4 Bosw. 638). Under the Code the judgment must be pleaded (Hendricks v. Decker, 35 Barb. 298-303 ; Drought v. Curtiss, 8 How. Pr. 56).
    Before the Code a release might be set up and defeated on proof of fraud without its being in issue, if objection was not interposed (Ferris v. Crawford, 2 Den. 597-604; Kelsey Hobbs, 12 Peters, 278). Relief was given in some form (Sandford v. Sinclair, 3 Den. 269, 273-4).
    IV. Refusal to allow supplemental answer will be reversed if decision be wrong (Hoyt v. Sheldon, 6 Duer, 661; Bowen v. Irish Presb. Ch., 6 Bosw. 259 ; Harrington v. Slade, 22 Barb. 164 ; Guild v. Parsons, 16 How. Pr. 382 ; Cheeseman v. Sturges, 19 Abb. Pr. 293).
    V. The court will not prejudge the question of the effect of the new matter, but give leave to set it up (Bate v. Fellowes, 4 Bosw. 638, 641; Hoyt v. Sheldon, supra; Nicholl v. Mason, 21 Wend. 339 ; Walsh v. Durkin, 12 Johns. 101; 2 Vroom, 317; 50 Me. 215). Leave to file does not decide the rights of the parties (Robbins v. Wells, 26 How. Pr. 15 ; S. C., 18 Abb. Pr. 191; Candler v. Pettit, 1 Paige, 168 ; Day v. Potter, 9 Paige, 645).
    VI. The New Jersey final decree, pronounced by the chancellor, negatived the whole ground of the interlocutory order in New York (Gregory v. Molesworthy, 3 Atk. 626, 627). This judgment of a sister State is conclusive in another suit between the same parties, although the subject matter of the second action be different (Doty v. Brown, 4 Const: 71, citing numerous cases; Castle v. Noyes, 4 Kern. 329; Radley v. Houghtaling, 4 How. Pr. 251; Dobson v. Pearce, 12 N. Y. 156).
    VII. The decree not being authenticated by the signature of the chancellor, or under the act of Congress is no objection to the application, for it was binding on the parties when it was pronounced, the subsequent proceedings being ministerial only (Harr. 324, cited in 2 Seton on Decrees, 1139 ; 1 Harrison, 7th Eng. Ed. 619 ; Skip v. Harwood, 3 Atk. 564, 565 ; Anonymous, Id. 809; Kinsey v. Kinsey, 2 Ves. Sen. 577; Butler v. Lee, 33 How. Pr. 258).
    
      Joseph M. Dixon (Dixon, Whitlock & Anderson, attorneys), opposed.
    I. There was no judgment or decree in the New Jersey action. There was simply an opinion of the chancellor, which certainly did not come within section 177.
    II. The New Jersey decree could in no way determine the matters in controversy in this action, as the issues and parties were different. The contracts in controversy here were not mentioned there.
    III. This action was commenced and decided before the New Jersey action, and was therefore a bar thereto. The action first commenced is always a bar to the second action (Groshon v. Lyon, 16 Barb. 461).
    IV. Supplemental pleading is not allowed after trial (Bowen v. Irish Presb. Church, 6 Bosw. 245; Houghton v. Skinner, 5 How. Pr. 420).
    
      
       S. P., Code of Civ. Pro. § 544.
    
   Lawrence, J.

Assuming that the learned counsel for the defendant is right in contending that the questions involved in this action and in the suit in the court of chancery of the State of New Jersey are the same, or substantially the same, I am of the opinion that the motion for leave to file a supplemental answer should be denied, for the reason that the action in this court was commenced first. The rule is that where there are two proceedings pending between the same parties for the same cause of action, the proceeding first commenced is a bar to the last,, or goes in abatement of it (Groshon v. Lyon, 16 Barb. 461). In the case of Bate v. Fellowes (4 Bosw. 639), referred to by counsel, the court refused to pass upon the question of the suffi-... ciency of the matter proposed to be pleaded in the supplemental answer, because it depended upon a question of fact to be proved. Here the question of sufficiency is necessarily one of law, and under the decision in 16 Barb., above cited, the matter proposed to be pleaded cannot be a bar to this action.

Motion denied, with $10 costs.  