#### Liftchild *et al.*plaintiffs, *vs.*Smith, defendant.

1. In an action for damages for a fraudulent warranty made by the defendant on a sale of property to the plaintiffs, the court will not, on motion, compel the defendant to discontinue an action brought by him in another court, since the commencement of the one in which the motion is made, for a part of the unpaid purchase money of the property; or to stay proceedings therein until the *determination*of the first mentioned action.

2. This CQurt has no authority, by an order made in an action pending therein, to stay a defendants’ proceedings in another court; nor can it deprive.him of his right to select his own tribunal for the trial of the cause of action which he claims to have against the plaintiff in the action pending in this court, unless it be identically the same with that in the action in such other court.

(Before Jones, J. at special term,

February —, 1868.)

This was a motion to compel the defendant to discontinue an action brought by him in another court, since the commencement of this, for a part of the price unpaid of the subject of the action in this case, (which is brought for fraud in the sale thereof,) or to stay proceedings therein until the determination of this action.

This action was commenced on the 8th of 'November, *1867, to*recover damages for a “ false and fraudulent warranty and representation,” made by the defendant to the plaintiffs, whereby the plaintiffs were induced to purchase a butcher’s shop, its contents, and a horse, from the plaintiffs, for a certain sum, ($750,) and to pay on account thereof all of such price but $100.

The answer, besides several admissions and denials of the allegations in the complaint, contained, as a distinct defense, the facts, that on the next day after commencing this suit, (9th November, 1867,) the defendant commenced an action, in a district court of the city of New York, against the plaintiffs, to recover the balance due on said purchase of the plaintiffs, ($100;) that issue ivas joined in that action, the defendants therein setting up, among other *307things, as matter of defense, and by way of counter-claim, off set and recoupment, against the claim of the plaintiff therein, damages to the amount of $300 sustained by the defendants therein, and that such action was still pending.

This motion was made on behalf of the plaintiffs in the action in this court, for an order staying all proceedings, and to discontinue the district court action; that the cause of action and defense in- said district court be merged in this action; and that the same be tried therein.

*A. H. Reavy,*for the motion.

*M. Connolly,*opposed.

Jones, J.

I know of no principle, nor have I been able to find any authority, to support this motion. I have no power to stay the proceedings in the district court, and compel the defendant to rely on his answer in this action, or authority by an order in this suit, to stay the defendant’s proceedings in another court. Bor can I deprive him of his right to select his own tribunal for the trial of the cause of action which he claims to have against the plaintiffs.

All the cases cited by the plaintiffs’ counsel have been examined by me, and none of them are authority for such a motion as this. The cases of *The Auburn City Bank*v. *Leonard,*and *Leonard*v. *The Bank,*(20 *How. Pr.*193;) *Fuller*v. *Read,*and *Read*v. *Fuller,*(15 *id.*236,) were cases where both actions were pending in the same court, and the court held that it had such control over the proceedings in it as to' stay those in one action until the trial of the other. In *Hammond*v. *Baker,*(3 *Sandf.*704,) the plaintiff, after commencing the suit in this court, commenced another in a court in the state of Bhode Island. The court held it could not restrain a resident of Bhode *308Island from prosecuting a suit there, even for the same cause, but could restrain proceedings in the suit in this court. In *McCarthy*v. *Peake,*(9 *Abb.*164.) Peake and McCarty had been partners. Peake brought an action in this court against McCarty, to restrain him from interfering with the partnership property, and obtained a temporary injunction. Afterwards McCarty commenced an action in the Supreme Court against Peake, to close up the partnership affairs, and obtained an injunction and an order appointing a receiver. The latter court held this language: “Under the decisions which have repeatedly been made in this court and the Superior Court, the court which first acquires jurisdiction of the case should dispose of the whole matter. Any other court in which subsequent proceedings are taken for the *same purpose,*should, as well from feelings of *amity*as from a desire to *avoid a conflict of jurisdiction,*restrain the further prosecution of the second action,” But there is here no intimation that the court can restrain proceedings in another court.

The other cases have clearly no application. Many of them are decisions upon the doctrine of compelling an election. The present motion is not to compel an election, and, therefore, it is unnecessary to consider what the rule of law may be in that respect.

Motion denied, with costs.