
    International Post Card Company, Respondent, v. The Lithograph and Manufacturing Company of the United States, Appellant.
    First Department,
    April 7, 1911.
    Stay — action on contract in Municipal Court — counterclaim arising out of same transaction.
    The prosecution of an action in the Municipal Court of the city of Sew York brought to recover for goods sold should not be stayed until the determination of a subsequent action in the Supreme Court brought by the defendant in the prior action against the plaintiff therein for a breach of the same contract of sale. •
    The defendant in the action in the Municipal Court can interpose his claim for damages as a' counterclaim, and, if the amount he can recover thereon is beyond the jurisdiction of the court, he may maintain a subsequent action for the balance.
    The trial of an action should not be stayed until issue has been joined, for until then it cannot be determined whether there be any necessity for the stay, as the plaintiff’s claim may not be contested.
    Appeal "by the defendant, The Lithograph and Manufacturing Company of the United States, 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 3d day of March, 1911, staying an action in the Municipal Court of the city of New York until the final determination of this action.
    
      Earl Bryant Barnes, for the appellant.
    
      Rudolph Marks, for the respondent.
   McLaughlin, J.:

The plaintiff and defendant entered into a contract by which the defendant agreed to manufacture for the plaintiff at an agreed price certain post cards. The" contract as originally made or thereafter modified was not fully performed by reason of a disagreement between the parties, and each,, according to .the moving papers, now claims to be entitled to recover damages against the other for its failure to perform. The defendant also claims to be entitled to recover from the plaintiff §163.44 for cards delivered, and it brought an action in the Municipal Court of the city of New York to recover that amount. Thereupon the plaintiff brought this action in the Supreme Court to recover its alleged damages for the defendant’s failure to perform the contract. Before issue had been joined in either action the plaintiff moved to consolidate the two actions, or, in the alternative, to stay the trial of the "action in the Municipal Court until after1 the determination of this one. The motion was granted to the extent of staying the Municipal Court action until after the determination of this action and the defendant appeals.

The defendant had the right to bring the action which it did in the Municipal Court. • That was the forum which it selected and it cannot be compelled to abandon that forum and interpose its demand as a counterclaim in an action which it cannot control in another forum. (Martin v. Prentice, 133 App. Div. 741; Walkup v. Mesick, 110 id. 326; Jones v. Leopold, 95 id. 404.) If it be true, as claimed, that the plaintiff has sustained damage for breach of contract to .the extent of §2,000, that is no reason why the plaintiff in the Municipal Court action should be deprived of its right to have its demand tried in the forum selected by it; • This plaintiff can, in that action, interpose its claim for damages as a counterclaim, and while it is true that the amount it could recover would be limited to the sum to which that court has jurisdiction, if it appeared that it is entitled to any greater amount it could then maintain an action to recover the balance. (Mun. Ct. Act [Laws of 1902, chap. 580], §157.)

Besides, the trial of an action ought not to be stayed until after issue has been joined. Until then it cannot be determined whether there is any necessity for a stay. For aught that appears the claim of the plaintiff may not be contested. (Raymore Realty Co. v. Pfotenhauer-Nesbit Co., 139 App. Div. 126.) Indeed, in the papers before us it seems to be conceded by the respondent that the appellant has in fact furnished cards which, at the stipulated price, amount to the sum claimed by it in the Municipal Court action.

The order, so far as appealed from, is reversed, with, ten dollars costs and disbursements, and the motion denied, with tén dollars costs.

Ingraham, P. J., Scott, Miller- and Dowling, JJ., concurred. •

Order reversed, with ten dollars .costs and disbursements, and motion denied, with ten dollars costs.  