Reis v. Graham

122 A.D. 312, 106 N.Y.S. 645, 1907 N.Y. App. Div. LEXIS 2424

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1907
• Status: Published

Opinion

Kellogg, J.:

One Beardsley contracted to 'make certain alterations and improvements in the theatre belonging to one Robinson as trustee, and Beardsley contracted with the Andrews Company to install for him the opera chairs in said theatre, and the defendant .Robinson guaranteed the performance of said contract on the part of said Beardsley. About the time for the delivery of the chairs, the Andrews Company insisted that Moses ¿lis must accept drafts for the amount to become due to it upon the contract and to bring about a fulfillment of the contract the said Reis accepted the drafts in suit, which were subsequently transferred to one Graham who brought an action in New York county against said Reis on said acceptances, claiming that he was a holder for value. Reis defended that action, claiming that by a subsequent understanding between Beardsley and the Andrews Company the chairs were not installed until four days after the time mentioned in the original, contract; that the same was done without his consent; that he was an accommodation acceptor and that the defendant-was thereby discharged from liability, and that certain of the chairs did not comply with the contract, and denied that Graham was a holder for value. The chairs were installed and are now in use in the theatre.

When the New York action was’upon the calendar ready for trial and just before the trial day, this action was brought with the venue in Chemung county by Reis against the said Graham, his attorneys in the New York action and others, alleging substantially the same matters set up in his answer in the New York action, and asking that that action be enjoined and an accounting had between the parties, and a temporary injunction accompanied the summons and complaint in that action restraining the prosecution of the New York action. The Andrews Company and Graham, the plaintiffs in the former action, were non-residents of the State and, were not served. Service was made upon Graham’s attorneys, who made the application to vacate the injunction and who bring -this appeal.

The- complaint in this action, in substance, alleges the same matters that are set up as a defense in the New York action, and if there are any merits in the matters alleged, they are fully available as a defense in. that action. They .are not matters calling for equitable relief, but are purely defensive.. Nó fact appears in the affidavits or moving papers indicating the propriety or necessity of bringing the action in Chemung county, or of enjoining the prosecution of the New York action. A change of venue is obtained by motion in the action rather than by injunction in another action. .

■ The order appealed from should be reversed, with costs, and the motion to vacate the. injunction granted, with ten dollars costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion to vacate injunction granted, with ten dollars costs.