Hay v. Cole , 97 N.Y. Sup. Ct. 258 ( 1895 )

PER CURIAM.

It is disclosed by the record that the respondent brought an action in the court of common pleas against Thomas Hay to set aside said judgment on the same ground disclosed in the motion papers, which action was pending when this motion was heard and decided. This fact is conceded. The respondent had no right to prosecute concurrent remedies at the same time in different courts for the same relief. . Had he desired to obtain relief by motion he should have discontinued his action, and the pending action is a defense to this motion.

The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs and disbursements.