Opinion
June 4, 1943.
Appeal from Supreme Court, New York County, DINEEN, J.
Jay Leo Rothschild of counsel ( Benjamin Siegel, attorney), for appellant.
Sanford H. Cohen of counsel ( George Cohen and Sol E. Flick with him on the brief; Sanford H. Cohen, attorney), for respondents.
The motion was for dismissal of the complaint upon the ground that there is another action pending between the same parties and for the same cause and for a determination that the court decline jurisdiction over the subject matter of the action. The Special Term held that the pendency of the action previously instituted in the United States District Court for the Southern District of New York did not preclude the plaintiff from maintaining this action. It granted the defendants' motion, however, to the extent of deciding that it would decline jurisdiction if it were determined that the defendants were not residents of the State of New York.
The plaintiff's claims are founded on commercial transactions in which the defendant Charles Laubheim covenanted to pay sums of money to the plaintiff. The court is not justified in declining jurisdiction by the fact that the plaintiff seeks to set aside transfers by Charles Laubheim to his wife in fraud of creditors which, if not avoided, would prevent the enforcement of these covenants.
The order, so far as appealed from, should be reversed, with twenty dollars costs and disbursements, and the motion to dismiss the complaint denied without condition, with leave to defendants to answer within ten days after service of a copy of order, on payment of said costs.
MARTIN, P.J., TOWNLEY, UNTERMYER, COHN and CALLAHAN, JJ., concur.
Order, so far as appealed from, unanimously reversed, with twenty dollars costs and disbursements, and the motion to dismiss the complaint denied without condition, with leave to the defendants to answer within ten days after service of order, on payment of said costs.