Savage v. Allen , 59 Barb. 291 ( 1871 )

By the Court, Ingraham, P. J.

The motion to dismiss the complaint should have been granted.

The complaint alleges that Henry L. Parsons, as guardian of the defendant in this action, had commenced an action in the superior court against this plaintiff and his tenant, to recover possession of the lot referred to in the pleadings, in- this action, and that the said action is still pending. St also appeared on the trial that in such action,. as in this/ the defendant having become of full age, had rendered/the appearance of a guardian unnecessary, and the actions are continued as to her alone. Under- the decisions jof the general term, it is improper .to commence one ac;iion to stay proceedings in another, whether in the same -court or in another court, when the plaintiff in the second action could have obtained the same relief in the original action, that he might have obtained in the present action. That such was the case in the action in the superior court, there can be no doubt. The defendant here, by her guardian, brought an action against the plaintiff here and his tenant, to recover from them the possession of the lot in controversy. The defendant in that suit could have set up in his answer, all the matters alleged in his complaint in this action, and could have asked for all the relief that he asks for. Those facts, if true, would have been a good defense to the plaintiff’s claim there, and would have entitled him to a judgment for all that he claims here, unless the plaintiff there could have shown such claim to be invalid. The referee was of the opinion, rightly, that such relief could have been granted in that action. Under such circumstances this action cannot be maintained. (Schell v. The Erie Railway Co., 51 Barb. 368. The Erie Railway Co. v. Ramsey, 57 id. 449. Stover v. Cogswell, Id. 448.) It is said in the latter case the plaintiff can yet move, in that action, for such relief as the facts show he ought to have, against the judgment which has passed against him. In this, case the action in the superior court is still pending, and the plaintiff can set up therein, any defense which he now has against the claim • of this defendant. '

[First Department, General Term, at New York, April 4, 1871.

The judgment should be reversed, and judgment of dismissal of complaint ordered.

Judgment reversed.

Ingraham, P. J. and Cardoza and Geo. G. Barnard, Justices.]