Tarrant v. Quackenbos , 10 How. Pr. 244 ( 1853 )

Morris, Justice.

The papers used upon the argument of this motion, show the following facts :—

On the 11th of November, 1852, Nicholas Quackenbos, one of the defendants in this cause, instituted a suit in the superior court of the city of New-York, against John A. Tarrant, the plaintiff in this suit, administrator, &c., of James Tarrant, deceased, to declare void and cancel a certain mortgage, given by Henry Feltus Quackenbos, one of the above defendants, to the above-named James Tarrant, in his lifetime, upon certain houses and lots situated in the city of New-York, and particularly described in the mortgage, and in the complaint.

On the 20th of December, 1852, issue was joined in the cause, in the superior court, by the answer of the defendant in that suit—the plaintiff in this.

On the 23d of December, 1852, the above-named John A. Tarrant commenced this suit, in the supreme court, as administrator, &c., of James Tarrant, deceased, against all the defendants, to foreclose the said mortgage, given by the said Henry Feltus Quackenbos, mentioned in the suit in the superior court.

On the 7th of February, 1853, issue was joined in this suit, by the joint answer of all the defendants.

In this motion, the defendants claim, that a decision of the suit of Nicholas Quackenbos agt. John A. Tarrant, in the superior court, will settle the question involved in this suit, and that, as the issue in the superior court is the oldest, and to prevent unnecessary expense, this suit should be stayed until that is decided.

A decision of the cause in the superior court, in favor of the validity of the mortgage, does not save the necessity for the continuance and determination of this suit; but a decision of this cause would settle all the issues between the parties: as well the validity of the mortgage, as the amount and lien of the indebtedness, and the collection of it. The plaintiff has a right to enforce the collection of his demand. The cause in the "superior court, would not do that.

Defendants’ motion denied, with ten dollars costs to plaintiff, for opposing.