Opinion
April 24, 1908.
Faneuil D.S. Bethune, for the appellant.
Thaddeus D. Kenneson, for the respondent.
This is an action to foreclose the plaintiff's mechanic's lien on the defendant's land for work done and material furnished under a written contract between the parties for the erection of an icemaking plant on the defendant's land by the plaintiff for $8,500, of which $2,000 was paid. Before this action was begun this defendant brought an action against this plaintiff for damages for the breach of the said contract in the sum of $20,000, and issue was joined in it first. In each action the defendant alleges in defense the same matter which it pleads in the other as plaintiff. The court below had the discretion and the right in managing its calendars and regulating its order of business to put off or stay the trial of the second action — the one now here — until the first should be tried, and it was entirely orderly to do so, for if this defendant should prevail in his said action for damages against this plaintiff for failure to fulfill its contract, then this plaintiff could not recover in its action to foreclose its lien, the issue of performance being common and controlling to each action. The judgment would be res adjudicata of the lien action. It is a fact that there is an additional party to this action, but only because the plaintiff seeks to have its judgment of foreclosure made prior to a mortgage held by such defendant on the property. But that question is only incidental and will never be reached if judgment goes against this plaintiff in the said first action.
There is no narrow technical rule that the issues and parties must be identical in all respects in each in order that the trial of one action may be stayed or postponed until after the trial of the other. The law looks to the substance of things, and if, as here, the issue in the action first brought is such that if the plaintiff prevails the judgment will require a dismissal of the other, it is orderly to try the first action first. An additional reason why the first one here should have precedence is that it is a common law action and therefore secures a trial by jury of the controlling issue of fact of each action. The rule in respect to postponing a cause until after the trial of another is one of convenience and order in practice ( Post v. Banks, 67 App. Div. 187), and not always one of strict right as is the case in pleas of former adjudication, and therefore the cases cited on this latter head while they may be instructive by analogy are not controlling.
The order should be affirmed.
WOODWARD, JENKS, HOOKER and RICH, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.