Trubee v. Alden

13 N.Y. Sup. Ct. 75

• Court: New York Supreme Court
• Decided: December 15, 1875
• Status: Published

Opinions

Davis, P. J.:

The plaintiff sued the defendant in Connecticut in an action of trover for the identical goods which form the subject of her claim in this action. The goods were seized by the sheriff in the suit in Connecticut by attachment, and released on valuation, and on the execution of a bond of $14,000. That suit is still pending. The plaintiff has since commenced this action, and sued out an attachment for the full amount of the claim, and attached defendant’s property. It is well settled that the pendency of a suit for the same cause of action in another State is no bar to an action therefor in this State. On this point the authorities are numerous. But it does not by any means follow that the court will not take ■notice of the fact of such pendency in considering questions affecting provisional remedies. If, for instance, a defendant has been arrested and given bail in another State for a cause of action, and afterward comes into this State, will the court permit the plaintiff, by a new action brought here for the same cause, again to arrest and hold the defendant to bail, and still continue his suit, and enforce his bail in the former State? The discretion which courts possess over provisional remedies would require sharp inquiry, whether in such a case prosecution had not degenerated into persecution, and to take care that its process was not used for the latter purpose. Each case would be governed by its own circumstances, but in no case, I apprehend, where good bail for the full amount had been put in, in due course, in the action pending abroad would the court permit the same thing to be repeated here without the discharge of the bail there, or clear proof that the defendant was fraudulently evading his obligations to them, or doing some other act that made it imperative to secure the personal remedy here ? I see no reason why the same rule should not apply to attachments. In this case, the plaintiff, for the identical cause of action, has attached, in Connecticut, the property of defendant, to release which, a bond which must be assumed to be good, for $14,000 has been executed. Why should she be permitted, in another action for the same cause, to harrass the defendant by attachment here, except to an extent for which she has not adequate security there ? It is said that her claim exceeds $14,000. Very well, she may then have, under provisional remedy here, an adequate additional security, but why a cumulative one for the whole amount? I think the courts of this State ought not to surrender their discretion over provisional remedies by holding that because actions may be brought here for the same causes for which suits are pending in other States, that, therefore, pending such actions, the plaintiff may arrest persons or attach property, regardless of the same or similar steps taken in her other suits.

I do not agree, therefore, with the conclusion of my Brother Brady but think that the attachment in this case should be modified to cover a sum adequate as additional security, unless the plaintiff choose to abandon the similar proceeding in Connecticut, in which case the order should be affirmed.

Daniels, J., concurred.