Opinion
Argued December 8, 1885
Decided January 19, 1886
James S. Sherman for appellants. Nicholas E. Kernan for respondent.
The question upon this record, stated most favorably to the appellant, is whether the pendency of an action upon contract in the United States Circuit Court is good ground for setting aside the service of a summons issued in a court of this State to enforce the same cause of action. As to it the courts below have differed. We agree with the General Term. At common law the pendency of another suit for the same cause could, at most, only be pleaded in abatement; but where the former action is in a court of the United States, or a sister State, it is no stay or bar to a suit in the courts of this State. A recovery in one might be pleaded to the further continuance of the other, but until that was obtained each might proceed to judgment and execution, when a satisfaction of either would require a discharge of both ( Walsh Gallagher v. Durkin, 12 Johns. 99; Mitchell v. Bunch, 2 Paige, 606, 620), and the rule is the same since the Code. ( Burrows v. Miller, 5 How. Pr. 51; Cook v. Litchfield, 5 Sandf. 330.)
That the first action was commenced in a State court by service upon one of several joint contractors, and removed by him into the United States court, and the second action afterward commenced by the service of a summons upon a different defendant cannot relieve that defendant. The plaintiff is entitled to all the remedies provided by law for the collection of its debt, and need not be satisfied until it has had such a judgment as will bind the defendants individually as well as jointly. It might, perhaps, proceed in the same suit against the other defendants (U.S. Rev. Stat., § 639, 2d subd.), in the State court, or, after judgment against all in such form as would bind the joint property, take proceedings to charge the defendants not personally summoned. It was not bound to do either, but might, as in this instance, commence a new action. ( Lane v. Salter, 51 N.Y. 1; Morey v. Tracey, 92 id. 581.)
We think the order appealed from should be affirmed.
All concur.
Order affirmed.