
    Thomas Hay, App’lt, v. Pamelia B. Cole, Def’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 15, 1895.)
    
    .Judgment—Motion to set aside—Pendency.
    A party cannot move to set aside a judgment,. while an action by him for such purpose is pending in another court; such pending action is a defense to the motion.
    Appeal from an order, setting aside a judgment entered by confession in favor of plaintiff on motion of respondent
    
      James W. McElhinney, for app’lt; Andrew Shiland, for resp’t.
   Per Curiam.

It is disclosed' by the record that the respondent brought an action in the court of common pleas against Thomas Hay to set aside said judgment on the same ground disclosed in the motion papers, which action was pending when this motion was heard and decided. This'fact is conceded. ■ The respondent had no right to prosecute concurrent remedies at the same time in different courts for the same relief. Had he desired to obtain relief by motion he should have discontinued his action, and the pending action is a defense to this motion.

The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs and disbursements.  