
    Locomobile Company of America, Respondent, v. American Bridge Company of New York, Appellant.
    
      Injunction to prevent the prosecution in another State of an action between the same parties foo' the same cause and ashing the same relief as one already brought in the State of New York.
    
    The Supreme Court of the State of New York, sitting as a court of equity, has power to enjoin the plaintiff in an action pending in the State of New York from prosecuting, until after the determination of such action, an action subsequently brought in another State against the same defendant to recover upon the same cause of action and for the same relief.
    Circumstances which make it the duty of the Supreme Court to exercise this power, considered.
    Van Brunt, P. J., dissented.
    Appeal by the defendant, the American Bridge Company of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of November, 1902, enjoining the defendant from prosecuting an action instituted by it against the plaintiff in the Superior Court, county of Fairfield, Connecticut.
    
      Paul E. De Fere, for the appellant.
    
      W. W. Niles, for the respondent.
   McLaughlin, J.:

The defendant in this action, as the assignee of the Berlin Iron Bridge Company, in May, 1901, brought an action in the Supreme Court of this State—the venue being laid in the county of New York — against the plaintiff to recover the sum of $10,233.65 for an alleged breach of contract. The defendant in that action interposed an answer denying all liability and setting up a counterclaim of $36,000 for damages for the alleged failure of the Berlin Iron Bridge Company to perform the contract referred to in the complaint. The defendant in that action, under a stipulation, took on the 16th of December, 1901, the deposition of one Speirs, who at the time the contract referred to was made and to be performed, was the managing superintendent of the defendant’s factory in the State of Connecticut. Since the deposition was taken Speirs was discharged. He is now in the State of. Pennsylvania, and it is fair to infer he is not friendly to the party in whose interest the deposition was taken. • Subsequent to the discharge of Speirs the plaintiff in that action brought another action against the plaintiff in this action in the Superior Court of Connecticut to recover the same amount, upon the same cause of action as that set out in the complaint in the New York action. Thereupon the defendant (this plaintiff) brought this action in equity to restrain the bridge company from prosecuting the Connecticut action until after the determination of the New York action, and thereafter applied to the Special Term for an injunction pendente lite. The ground upon which the injunction was asked was, in substance, that the Connecticut action was not brought in good faith, but only for the purpose of harassing and annoying the plaintiff, putting it to great and unnecessary expense in the preparation of the defense of the two actions, and of depriving it of the benefit of the deposition of the witness Speirs; and in this connection it was made to appear that the Connecticut action would be first reached for trial and that Speir’s attendance could not be had at that trial. The bridge company denied that the action was not brought in good faith, or that it had any intent of annoying the plaintiff or putting it to unnecessary expense, and in the affidavit submitted by its attorney the statement is made that the bridge company had no objection to consenting that the testimony of the witness Speirs — taken in the New York action— be used in Connecticut, if it be true that the attendance of said witness could not be had upon the trial of said action. It also appeared that in the Connecticut action a warrant of attachment had been issued and a levy made upon certain property belonging to the Locomobile Company.

The court at Special Term was of the opinion that the injunction should be granted, solely upon the condition, however, that this plaintiff, within ten days after the service of the order granting the injunction, should give an undertaking in.the sum of $15,000, with two sureties, or a surety company, to be approved by a justice of this court, conditioned for the payment of any judgment which might be recovered against the plaintiff in the New York action, and if such security was not given that then the motion for the injunction should be denied.

It cannot seriously be doubted but that a court of equity has the power to enjoin a party to an action pending in this State from prosecuting an action subsequently commenced in another jurisdiction, between the same parties, to recover upon the same cause of action and for the same relief, or that it is the duty of the court to exercise that power, where equity and good conscience require it. (Edgell v. Clarke, 19 App. Div. 199.) Whether it will exercise that power rests largely in its discretion and necessarily depends upon the facts presented in each particular case. Here, we think, the discretion was properly exercised. The bridge company having commenced its action in this State, and the Locomobile Company having, as appears, property more than sufficient to satisfy its claim, which can be reached by attachment, it ought not to be permitted to prosecute the action subsequently commenced in Connecticut, in view of the fact that the trial of that action may injure the Locomobile Company by depriving it of the benefit of the deposition taken in the action in this State, and it is fair to infer, under the facts presented, that the purpose of the action was to prevent the use of that deposition. In this connection it is to be noted that no offer was made that the deposition might be read in that action ; on the contrary, the only statement is that “ the attorney for the defendant in this action has no objection to consenting that the testimony of the witness John C. Speirs,- taken in the New York action, may be used in the Connecticut action if it be true that the attendance of said witness cannot be had upon the trial of said action.” Who is going to determine whether or not the attendance'of said witness can be had and when is such determination to be made ? It is also to be noted that this qualified offer was only made in answer to plaintiff’s motion for an injunction, notwithstanding the fact, according to the moving affidavits, that ineffectual efforts had theretofore been made to induce defendant’s attorney to enter into such stipuation. Hot a single fact is shown from which the court can see that any harm will come to the bridge company by enjoining the prosecution of the Connecticut action until after the determination of the Hew York action. It is suggested that the Locomobile Company may be insolvent. Ho proof is offered to establish that fact; on the contrary, it appeal’s that it has ample property in the State of Hew York which can be reached by attachment to satisfy any recovery which the bridge company may obtain. Hot only this, but the undertaking which the court at Special Term required the plaintiff to give as a condition of the granting of the injunction is amply sufficient to protect the bridge company.

Upon all of the facts, therefore, we are of the opinion that the court properly exercised its discretion in granting the injunction, and the order appealed from should be affirmed, with ten dollars costs and disbursements.

O’Brien and Laughlin, JJ., concurred; Patterson, J., concurred in result; Van Brunt, P. J., dissented.

Van Brunt, P. J. (dissenting):

I dissent. A party may bring actions in as many jurisdictions as he pleases upon the same cause of action, and he can try the one which he can first bring to trial, provided, however, that the actions are not fraudulently brought.

Order affirmed, with ten dollars costs and disbursements.  