Hammond v. Baker , 3 Sandf. 704 ( 1851 )

Where after the commencement of a suit in this court, the plaintiff commences another suit for the same cause of action in the court of another state, and after taking testimony in his suit in this court, breaks off and proceeds to take testimony in his suit in the foreign state; this court has no power to make an order restraining him from prosecuting the latter suit.

The court will, however, make an order, that unless he elects to proceed in the suit here, and thereupon stipulates to stay the proceedings in the foreign suit, his proceedings in the suit here shall be stayed, until the final determination of the foreign court, with leave thereafter to either party to apply to this court for such further order as shall be just.

The points above stated, were decided on a motion, by Sand-ford, J., with, the concurrence of Oakley, Ch. 3"., and Paine, J. This was a suit for an account, &c., commenced in the late court of chancery. The complainant resides in the state of Bhode Island, the defendant in the city of Hew York. Afterwards the complainant commenced a suit against the defendant, in the supreme court in equity in Bhode Island, for the same cause of action, and praying for the same relief. Both suits were put at issue, and the suit here referred to a referee, to take testimony, and while in that condition, was transferred to this court. The referee, at intervals, for several months, was engaged in taking testimony. The complainant then suddenly suspended the examination of witnesses here, and commenced the examination of witnesses in the suit in Bhode Island, including one or more of those who had been partially examined here. Thereupon the defendant moved for an order restraining the complainant from further prosecuting his suit in Bhode Island, during the pendency of his suit in this court. After hearing counsel, the court decided, as stated in the note of the case, that its power did not extend to restrain a resident of Bhode Island from prosecuting there a suit for the same cause. The supreme court of that state will control parties before it, so as to prevent wrong and oppression. But this court might and ought to prohibit the use of its process and proceedings in the mode practised by this complainant. He must suspend his suit there or here. The order was made as before stated.