
    The Rector, Church Wardens and Vestrymen of the Church of the Transfiguration in the City of New York, Appellant, v. The Rector, Church Wardens and Vestrymen of St. Stephen’s Protestant Episcopal Church of the City of New York, Respondent.
    First Department,
    December 30, 1909.
    Stay—when, action at law not stayed pending decision of suit in equity.
    A common-law action by a mortgagee, brought solely to recover upon the bond without seeking to foreclose a purchase-money mortgage collateral thereto, will not "be stayed pending the final decision in a suit in equity" brought by the mortgagor against the mortgagee asking a cancellation of a restrictive covenant contained in the deed in order that it may raise money on the lands so as to satisfy the mortgage.
    Appeal by the plaintiff, The-Rector, Church Wardens and Vestrymen of the Church of the Transfiguration in the City 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 2d day of December, 1909.
    
      Charles Blandy, for the appellant.
    
      Arthur O. Toionsend,. for the respondent.
   Scott, J.:

This is an áppeal from an order staying the trial of this action until ten days after the entry of an order determining the final appeal by the plaintiff herein from a "judgment obtained against it in another action wherein the defendant herein is plaintiff. Both plaintiff and defendant are religions corporations whose relations have become so strained as to lead them, at the present moment, into active hostility.

The defendant ‘owns and occupies for church purposes a plot of land and a building which formerly belonged to plaintiff by whom it was sold to one Quintard, who afterwards conveyed it to defendant. As part consideration Quintard executed and delivered to plaintiff a.bond.and mortgage for $50,000, which defendant assumed and agreed to pay.

This is a common-law action to recover the amount due upon the bond, no attempt being made to foreclose the mortgage. The deed from Quintard to plaintiff contained a restrictive covenant forbidding the use of'the .property for other than church purposes. The defendant, claiming that the covenant is, for certain reasons, unenforciblé, ■ and alleging that its existence prevents the raising of money by means of a mortgage upon the property, either to pay off plaintiff’s debt, or to make needed extensions and improvements of the church, has commenced an action in equity for the cancellation of the restrictive covenant. This action has resulted in a decree in favor of the present defendant, which is now on appeal to this court and which will undoubtedly be carried further, if. affirmed here. The effect of the order appealed from is to stay the further prosecution of this action until the final determination of the pending appéal" from .the decree in the equity action, and of any further appeal that may be taken. The ground upon which it is sought to sustain the present order is that tlie final outcome of the equity action will, be determinative of the present action. This, however, is not strictly true. The issues in this action and in the •equity action are quite different, and it is possible that plaintiff might succeed in this action, and the present defendant, at the. saíne .time, succeed in the equity action in which it is plaintiff. The most that can be said is that if this defendant finally succeeds in its equity action it will be put in a ■position to raise money wherewith to pay its debt to this plaintiff. This is not sufficient to warrant a stay of this common-law action. The plaintiff is strictly within its legal right in insisting upon the enforcement of its bond, and it is not to ■ be stayed merely because the defendant hopes, in the event of a successful result of another action, to be able to avert the consequences which it apprehends from the outcome of this action.

' . The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten- dollars costs.

Ingraham, McLaughlin,. Claree and Houghton, JJ., concurred.

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