
    GEORGE BELL, Appellant, v. JOSEPH A. DONOHUE, et al., Impleaded, &c., Respondents.
    
      Actions for same cause pending in this and another State—stay of proceedings—order to elect.
    
    An action should not be allowed to proceed in a court of this State, while the plaintiff is pursuing the same defendant, for the same cause of action, in a court of another State; this, though in the action in this State are included, as defendants, parties not sued in the other action, provided such difference of parties does not change the case as to the defendant in question.
    In this case, the court directed that the plaintiff elect which action he would first prosecute, and stipulate to stay proceedings in the other.
    Before Sedgwick, Ch. J., and Van Voest, J.
    
      Decided November 7, 1881.
    Appeal by plaintiff from order directing a stay of proceedings in this action, until the determination of an action in the United States circuit court for the district of California.
    The facts appear in the opinion.
    
      Lord & Lord, attorneys, and Scott Lord, of counsel, for appellant, urged:
    I. When the parties are not the same, an order to stay should not be granted (People v. Northern R. R. Co., 53 Barb. 98 ; Leavitt v. De Launay, 4 Sandf. Ch. 281). Charging that the action of such company was fraudulent, it must be a party. It appears that the trustees of the New York company, colluding with, the defendants Donohoe and others, refused to take any steps to have it made a party to such foreclosure suit.
    
      II. The relief sought in the two actions is not the same. In denying a motion to stay an action until another was tried, the court held that it must appear “the entire relief demanded and sought for in this action could be awarded in the other” (People v. Northern R. R. Co., supra; Leavitt v. De Launay, supra).
    
    III. The pendency of another action for the same cause in another State, though prosecuted by the same plaintiff, is no bar to an action in this State (Williams v. Fitzhugh, 37 N. Y. 444, 451).
    
      Martin & Smith, attorneys, A. P. Whitehead, and M. W. Devine, of counsel, for respondents, urged:
    I. Where two suits are commenced and the subject of both actions and the parties are the same, and the entire relief sought for in the one can be obtained in the other, the one last brought should be stayed (McFarlan v. Clark, 2 Sandf. 699 ; Atkinson v. Merritt, 1 Id. 667; Burlingame v. Parce, 18 Hun, 149, and cases cited ; McCarthy v. Peake, 18 How. Pr. 138).
    II. The courts of this State will not enjoin the prosecution of a suit in another State ; but where the cause of action is the same in the two suits, and the parties are the same, or practically the same, the court in this State will stay proceedings in the case here, until the case in the other State is discontinued, or determined (Hammond v. Baker, 3 Sandf. 704 ; Nichols v. Nichols, 12 Hun, 428). The gravamen of both actions is an alleged fraud on the Mariposa Land and Mining Company and its grantee, the California Company (this latter company holding the fee of the Mariposa estate), which fraud, it is claimed, affects the validity of Donohoe’s mortgage on that estate. This makes the parties to both suits sufficiently identical within the case of Ritter v. Worth (58 N. Y. 627), though the parties defendant are not the same in the two actions.
    III. It is a well-established rule in this State, that our courts will not, by injunction, restrain a suit or proceeding previously commenced in a court of a sister State, or in any of the federal courts (Mead v. Merritt, 2 Paige, 402 ; Burgess v. Smith, 2 Barb. Ch. 276 ; Schuyler v. Pelissier, 3 Edw. Ch. 191; Hammond v. Baker, 3 Sandf. 704; Minfield v. Bacon, 24 Barb. 154; Williams v. Ayrault, 31 Id. 364).
   By the Court.—Sedgwick, Ch. J.

The plaintiff began an action in the United States circuit court for the district of California. The ultimate relief asked in that, was the same as in this action. The plaintiff’s cause of action involved' a setting aside of a settlement and agreement, between one of the present defendants and a corporation. In the present action, that corporation has been made a party defendant, and also one of the defendants who was not joined in the California action. In the California action the bill was demurred to, but no decision has been rendered, after argument of the demurrer; in this case an answer has been served. I am of the opinion that it would be inequitable and vexatious, to the defendant Donohoe, at least, to allow the present action to proceed, while the plaintiff was pursuing him, for the same cause, in California (1 Dan. Ch. P. 635; citing Durand v. Hutchinson, Ld. Raym. 248). The difference of parties does not affect the case as to him, except that it may be supposed that the action in California could not be successful without the corporation that has been made defendant here. I do not think, in view of the- circumstances that called for the attempt to set aside the settlement referred to," that the plaintiff should, at all events, be stayed here and forced to proceed with the California action. The more equitable course would be to compel him to elect which he will first prosecute to an end, or until it is discontinued, and to stipulate to stay proceedings in the other (1 Dan. Ch. P. 815). The defendants should not have had costs of motion. The order below will be modified by striking out the costs of motion, and by making the stay in this case to continue until the plaintiff shall elect, in writing, which action he will prosecute, at the same time stipulating to stay proceedings in the other action, during the pendency of the former action. The order is not, in any event, to stay the entering of the proper order in the action in California, when the decision as to demurrer shall be made. Neither party to have costs of appeal.

Van Vorst, J., concurred.  