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that action, leaving the parties to the present action to determine their rights, and affirmance, resulting in judgment absolute, not being a final settlement, as the complaint asked for alternative and inconsistent relief. Action by Lewis Lowenstein and others, as executors of the estate of Isaias Meyer, deceased, against Herman Schiffer and others. Motion to stay proceeding pending another appeal denied.

Parsons, Shepard & Ogden, for plaintiffs.

Guggenheimer, Untermyer & Marshall, for defendants.

SCOTT, J. This is a motion to stay further proceedings in this action until the decision of an appeal now pending in the court of appeals in another action between the same parties. The plaintiffs are the executors of Isaias Meyer, who, with the two defendants, composed the firm of Pelgram & Meyer. The co-partnership articles provided that, on the death of either partner, the surviving partners should have the option of purchasing the interest of the deceased at a valuation arrived at in a manner provided by the articles. Isaias Meyer having died, the defendants elected to purchase his interest in the business, and so notified his executors, the plaintiff's. Steps were thereupon taken to determine the value of Isaias Meyer's interest. The defendants, having made an inventory and appraisement, fixed the value of this interest at $609,000. The co-partnership articles also provided that the value of the interest of a deceased partner, in case of a purchase by the survivors, was to be paid in annual installments of $50,000 each. Negotiations were entered into between defendants and certain of the plaintiffs looking to a modification of the amount to be paid and of the manner of payment, and an agreement was prepared providing for a purchase of Isaias Meyer's interest in the firm for $585,000, payable in installments different as to amount and time of payment from those specified in the co-partnership articles. This agreement was never executed by all the plaintiffs, was never delivered, and never became operative. The defendants here thereupon commenced an action against the plaintiffs in this action, in which they set up the copartnership articles, the death of Isaias Meyer, and their election to purchase his interest in the business. They also set up the $585,000 agreement, and insisted that it had become operative, and they asked judgment in the alternative either that the $585,000 agreement be specifically enforced, or that the defendants (the plaintiff's here) be required to transfer to them Isaias Meyer's interest in the firm on the payment of the value thereof ascertained in accordance with the terms of the articles of co-partnership. When this action came on to be tried at special term, the complaint was dismissed, on the ground that the $585,000 agreement had never become operative, and that under the complaint in that action the only relief the plaintiff's could obtain was the enforcement of that agreement, failing which they had established no cause of action for any relief at all. Upon appeal to the appellate division, the judgment was reversed, the court holding that, while the $585,000 agreement had not been established, yet, under the complaint, the surviving partners had a right to demand the enforcement of that

clause of the co-partnership articles which permitted them to purchase the interest of the deceased partner. Schiffer v. Lauterbach, 7 App. Div. 223, 40 N. Y. Supp. 40. In the meantime the present action was commenced by Isaias Meyer's executors against his surviving partners, in which they set forth substantially the same facts as those alleged in the former action, except as to the valuation of the interest and the execution of the $585,000 agreement, and assert that Meyer's interest in the business was worth much more than $609,000, the amount at which it had been valued by his surviving partners. They ask for an ascertainment of the amount due from defendants under the co-partnership articles, and the election to purchase, and for judgment for the amount so found to be due. After the reversal of the judgment in the action by the surviving partners against these plaintiffs, that action and the present one were referred to the same referee, before whom they were tried concurrently, although he made separate reports and separate judgments were entered. Upon the referee's reports, judg ments were entered dismissing the complaint in the action of Schiffer v. Lowenstein, and awarding the plaintiffs in the present action a much larger sum than $609,000. Upon appeal to the appellate division, both judgments were reversed (38 App. Div. 178, 56 N. Y. Supp. 674; 38 App. Div. 636, 56 N. Y. Supp. 1115), and new trials ordered in both actions before another referee. In the present action the judgment was reversed because the referee had, in certain particulars, adopted an erroneous principle in ascertaining the value of Isaias Meyer's interest in the assets of the co-partnership. Lowenstein v. Schiffer, 38 App. Div. 178, 56 N. Y. Supp. 674. The judgment in the action of Schiffer v. Lowenstein was reversed because a new trial had been ordered in this action, and "the issues arising on the subject of the prior partnership agree ment will therefore be considered in the executors' [that is, the present] action." 38 App. Div. 636, 56 N. Y. Supp. 1115. The executors thereupon appealed to the court of appeals from the order for a new trial in the action of Schiffer v. Lowenstein, giving the requisite stipulation for judgment absolute in case of affirmance. This appeal has not yet appeared upon the calendar of the court of appeals, and probably will not do so until a new calendar is made. up. The present action is now on trial before the referee appointed by the appellate division. The defendants now move to stay further proceedings in this action until the hearing and determination of the appeal in Schiffer v. Lowenstein. If, as they insist, the decision upon that appeal will necessarily determine the issues in the present action, their motion should be granted; for it is well settled that where the decision in one action will determine the rights set up in another action, and the judgment on one trial will dispose of the controversy in both of the actions, a proper case for a stay in one action is presented. An examination of the pleadings and judgments in the two actions now under consideration shows that the decision of the court of appeals on the appeal from the order granting a new trial in Schiffer v. Lowenstein will by no means settle the controversy between the parties. Of course, if the

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order of the appellate division be reversed, and the judgment entered on the report of the referee be affirmed, nothing whatever will be definitely decided, the complaint in Schiffer v. Lowenstein will be dismissed, and the parties relegated to the present action for a determination of their respective rights. On the other hand, if the order of the appellate division should be affirmed, it is not at all apparent that the controversy between the parties will be thereby determined. It is true that the executors have stipulated that, in case of affirmance, judgment absolute may be rendered against them. But what judgment? If the complaint in Schiffer v. Lowenstein asked for only one form of judgment, the final judgment to be entered would, of course, bé that asked for in the complaint. In fact, however, the complaint asks for alternative and inconsistent relief,-either that the $585,000 agreement be enforced, or that the amount to be paid to defendants for Isaias Meyer's interest in the action be ascertained by the court in accordance with the terms of the co-partnership articles. Hence, it appears that it is by no means certain that the parties will be any nearer the determination of their controversy after the decision of the court of appeals than they are at present. It is urged that the present action should be stayed, because the same relief asked in it can, ultimately, at all events, be obtained in the action of Schiffer v. Lowenstein, and because that was the action first brought. It is undoubtedly the general rule that, where one of two actions is to be stayed, the one first brought will be permitted to proceed, rather than one subsequently commenced. This rule, however, is not inflexible, and is to be applied only when substantial justice to the parties will be furthered thereby. If the court of appeals should reverse the order of the appellate division in Schiffer v. Lowen stein, that action would be disposed of, and no affirmative relief could be given in it to either party, and the determination of the controversy between them would be relegated to the decision of the present action. On the other hand, if the order of the appellate division should be affirmed by the court of appeals, and it should be determined that the final judgment to be entered was the alternative one that the value of Meyer's interest be ascertained by the court, then the parties would be only at the commencement of the same litigation which is now going on before the referee in the present action. Under the pleadings in the present action. the whole controversy can be, and, if the action be permitted to proceed, must be, determined. To stay this action pending the appeal in the other action would merely postpone, by the length of time necessary to reach the appeal in the court of appeals, the settlement of the differences between the parties. To do this would be inequitable. It is conceded on all hands that the value of Isaias Meyer's interest in the firm's assets was very large. Whatever that value is, the executors are entitled to payment or security. As the matter stands, while these litigations go on, the surviving partners are in possession and enjoyment of Meyer's interests in the firm assets, while his executors have neither the value of that interest nor the security for its payment. They are entitled to an

affirmative judgment fixing the value of the testator's interest, and providing for its present or future payment to them. Such a judgment can be obtained most quickly in the present action. Motion denied, with $10 costs.

Motion denied, with $10 costs.

(44 App. Div. 139.)

PURSLEY v. RODGERS et al.

(Supreme Court, Appellate Division, First Department. November 10, 1899.) 1. ACTION BY NONRESIDENT ADMINISTRATOR-SECURITY FOR COSTS-DISCRETION OF COURT.

Code Civ. Proc. § 3268, subd. 1, requires nonresident plaintiffs to give security for costs: but subdivision 4, providing for such security from persons suing in representative capacities, contains no provision relating to executors or administrators. Section 3271 authorizes the court, in its discretion, to require representative plaintiffs, including executors and administrators, to give such security. Held, that where plaintiff, a nonresident, was appointed administratrix in New York of a resident decedent's estate, and sued for his wrongful death, occurring in New York, a motion to require plaintiff to give security for costs was not a matter of right, but was addressed to the court's discretion.

2. SAME.

Where a nonresident was appointed administratrix of an intestate's estate in New York, and sued for such intestate's wrongful death, on behalf of the intestate's next of kin, who were all nonresidents, and there was no apparent estate or property in New York from which costs might be collected, such facts entitle the defendant to the favorable exercise of the court's discretion, requiring plaintiff to give security for costs.

Appeal from special term.

Action by Louisa C. Pursley, as administratrix of Charles F. Pursley, deceased, against John C. Rodgers and the Edgemoor Bridge Works. From an order denying defendants' motion to require plaintiff to give security for costs, defendants appeal. Reversed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, MCLAUGHLIN, and INGRAHAM, JJ.

L. E. Warren, for appellants.

Charles R. La Rue, for respondent.

BARRETT, J. If the question here were solely whether an administratrix appointed in this state, who happened individually to be a nonresident, was absolutely required to give security for costs under section 3268 of the Code of Civil Procedure, I should have no hesitation-following the almost unbroken line of special-term authority (Hall v. Waterbury, 5 Abb. N. C. 356; McDougal v. Gray [Sup.] 4 N. Y. Supp. 74; Flynn v. Tinney [Sup.] 60 N. Y. Supp. 791; Crowell v. Bills, 24 Misc. Rep. 411, 53 N. Y. Supp. 647)-in holding that she was not. The reason is obvious. Section 3268, subd. 1, plainly relates to persons suing as individuals. When the same section also brings within its area persons suing in certain representative capacities, it carefully enumerates and limits each particular official status thus embraced. Subdivision 4. It consequently recognizes and gives effect to the construction that in the one instance

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the action is personal; in the other, representative. In the latter case the substantial plaintiff is the estate, not the individual. As there must formally be some concrete personality to represent the estate, an individual is appointed by law, and that individual brings the action as administrator The administrator thus appointed by our courts is not, as such, "a person residing without the state," within the meaning of the section cited. He is but the legal representative of the deceased person. His action relates solely to the estate of that deceased person. That action is necessarily brought in the form prescribed by law, and thereby the estate, as an intangible entity, comes into court as the real and beneficial plaintiff. This distinction between the individual and the representative plaintiff is emphasized by the special provisions of sections 3271 and 3246 of the Code. Under section 3271 the court is authorized, in its discretion, to require the representative plaintiff to give security for costs. Under section 3246 the costs awarded against a representative upon a final judgment are collectible exclusively from the estate represented, unless the court directs them to be paid by him personally for mismanagement or bad faith in the prosecution of the action. It was at one time held that section 3271 was controlled or limited by section 3246, and that consequently the court had no power to require security for costs from the representative unless, upon the application therefor, mismanagement or bad faith were made to appear. The court of appeals in Tolman v. Railroad Co., 92 N. Y. 353, overruled the decisions where this view prevailed, and held that the two sections should be construed separately and independently, and that the court had power under section 3271 to require security for costs from one bringing suit in his representative capacity, without evidence of mismanagement or bad faith, and aside from the ultimate question of his personal liability for costs under section 3246. It is clear, therefore, that the court below was authorized to exercise its ordinary discretion upon the subject. The real questions presented upon this appeal, therefore, are: First, whether the discretion of the court was invoked by the procedure below; and, second, if it was, whether that discretion, upon the conceded facts, was properly exercised.

The respondent contends that the discretion of the court was not invoked under section 3271, and that the application below was denied for the reason that the defendant claimed security as an absolute right, under subdivision 1 of section 3268; that is, solely because the administratrix was a nonresident. The papers do not warrant the latter contention. The nonresidence of the plaintiff was but one of the facts upon which the application was founded. Then, too, the procedure indicates the contrary. Where a defendant claims security as a matter of right under section 3268, the mode of securing that right is prescribed in section 3272. The latter section plainly contemplates an ex parte application. This is its language:

"Where security for costs is required to be given, the court

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due proof by affidavit of the facts, must make an order requiring the plaintiff within a time specified either to pay into court the sum of two hundred and

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