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than that which has heretofore been claimed for it, or which in any adjudicated case it has obtained.

Having reached the conclusion, therefore, that the construction given to the ordinance by the court of special sessions-that mere possession, alone, constituted a crime-was erroneous, it follows that the judgment appealed from should be reversed, and a new trial. ordered. All concur; LAUGHLIN, J., in result.

LOCOMOBILE CO. OF AMERICA v. AMERICAN BRIDGE CO. OF NEW YORK.

(Supreme Court, Appellate Division, First Department. February 6, 1903.) 1. INJUNCTION-RESTRAINING PROSECUTION OF ACTION AT LAW.

Where defendant had brought an action against plaintiff in New York for breach of contract, and subsequently commenced another suit against it on the same cause of action in Connecticut, and it appeared that the trial of the latter action might injure plaintiff, by depriving it of the use of a deposition taken in the New York action, and that it was probably brought for that purpose, injunction was properly issued to restrain its prosecution pending determination of the action brought in New York, especially where conditioned on plaintiffs giving a bond to pay any judgment recovered against it in the New York suit.

Van Brunt, P. J., dissenting.

Appeal from trial term, New York county.

Action by the Locomobile Company of America against the American Bridge Company of New York to restrain defendant from prosecuting an action brought by it against the plaintiff in the superior court of Connecticut until after the determination of another action brought by it against the plaintiff in the supreme court of New York. From an order granting the injunction, defendant appeals. Affirmed. Argued before VAN BRUNT, P. J., and MCLAUGHLIN, PATTERSON, O'BRIEN, and LAUGHLIN, JJ.

Paul E. De Fere, for appellant.

W. W. Niles, for respondent.

MCLAUGHLIN, J. The defendant in this action, as the assignee of the Berlin Iron Bridge Company, in May, 1901, brought an action in the supreme court of this state-the venue being laid in the county of New York-against the plaintiff to recover the sum of $10,233.65 for an alleged breach of contract. The defendant in that action interposed an answer denying all liability, and setting up a counterclaim of $36,000 for damages for the alleged failure of the Berlin. Iron Bridge Company to perform the contract referred to in the complaint. The defendant in that action, under a stipulation, took, on the 16th of December, 1901, the deposition of one Spiers, who, at the time the contract referred to was made and to be performed, was the managing superintendent of the defendant's factory in the state of Connecticut. Since the deposition was taken, Spiers was discharged. He is now in the state of Pennsylvania, and it is fair to

1. See Courts, vol. 13, Cent. Dig. § 1441.

infer he is not friendly to the party in whose interest the deposition was taken. Subsequent to the discharge of Spiers, the plaintiff in that action brought another action against the plaintiff in this action in the superior court of Connecticut to recover the same amount, upon the same cause of action as that set out in the complaint in the New York action. Thereupon the defendant (this plaintiff) brought this action in equity to restrain the bridge company from prosecuting the Connecticut action until after the determination of the New York action, and thereafter applied to the special term for an injunction pendente lite. The ground upon which the injunction was asked was, in substance, that the Connecticut action was not brought in good faith, but only for the purpose of harassing and annoying the plaintiff, putting it to great and unnecessary expense in the preparation of the defense of the two actions, and of depriving it of the benefit of the deposition of the witness Spiers; and in this connection it was made to appear that the Connecticut action would be first reached for trial, and that Spiers' attendance could not be had at that trial. The bridge company denied that the action was not brought in good faith, or that it had any intent of annoying the plaintiff or putting it to unnecessary expense; and in the affidavit submitted by its attorney the statement is made that the bridge company had no objection to consenting that the testimony of the witness Spiers, takén in the New York action, be used in Connecticut, if it be true that the attendance of said witness could not be had upon the trial of said action. It also appeared that in the Connecticut action a warrant of attachment had been issued, and a levy made upon certain property belonging to the locomobile company. The court at special term was of the opinion that the injunction should be granted, solely upon the condition, however, that this plaintiff, within 10 days after the service of the order granting the injunction, should give an undertaking in the sum of $15,000, with two sureties, or a surety company, to be approved by a justice of this court, conditioned for the payment of any judgment which might be recovered against the plaintiff in the New York action, and, if such security was not given, that then the motion for the injunction should be denied.

It cannot seriously be doubted but that a court of equity has the power to enjoin a party to an action pending in this state from prosecuting an action subsequently commenced in another jurisdiction, between the same parties, to recover upon the same cause of action, and for the same relief, or that it is the duty of the court to exercise that power where equity and good conscience require it. Edgell v. Clarke, 19 App. Div. 199, 45 N. Y. Supp. 979. Whether it will exercise that power rests largely in its discretion, and necessarily depends upon the facts presented in each particular case. Here we think the discretion was properly exercised. The bridge company having commenced its action in this state, and the locomobile company having, as appears, property more than sufficient to satisfy its claim, which can be reached by attachment, it ought not to be permitted to prosecute the action subsequently commenced in Connecticut, in view of the fact that the trial of that action may injure the locomobile company by depriving it of the benefit of the deposi

80 N.Y.S.-19

and 114 New York State Reporter

tion taken in the action in this state; and it is fair to infer, under the facts presented, that the purpose of the action was to prevent the use of that deposition. In this connection it is to be noted that no offer was made that the deposition might be read in that action. On the contrary, the only statement is that:

"The attorney for the defendant in this action has no objection to consenting that the testimony of the witness John C. Spiers, taken in the New York action, may be used in the Connecticut action, if it be true that the attendance of said witness cannot be had upon the trial of said action."

Who is going to determine whether or not the attendance of said witness can be had, and when is such determination to be made? It is also to be noted that this qualified offer was only made in answer to plaintiff's motion for an injunction, notwithstanding the fact, according to the moving affidavits, that ineffectual efforts had theretofore been made to induce defendant's attorney to enter into such stipulation. Not a single fact is shown from which the court can see that any harm will come to the bridge company by enjoining the prosecution of the Connecticut action until after the determination of the New York action. It is suggested that the locomobile company may be insolvent. No proof is offered to establish that fact. On the contrary, it appears that it has ample property in the state of New York, which can be reached by attachment, to satisfy any recovery which the bridge company may obtain. Not only this, but the undertaking which the court at special term required the plaintiff to give, as a condition of the granting of the injunction, is amply sufficient to protect the bridge company.

Upon all of the facts, therefore, we are of the opinion that the court properly exercised its discretion in granting the injunction, and the order appealed from should be affirmed, with $10 costs and disbursements.

O'BRIEN and LAUGHLIN, JJ., concur. PATTERSON, J., concurs in result.

VAN BRUNT, P. J. I dissent. A party may bring actions in as many jurisdictions as he pleases, upon the same cause of action, and he can try the one which he can first bring to trial: provided, however, that the actions are not fraudulently brought.

VANDERCAR v. UNIVERSAL TRUST CO. (two cases).*

(Supreme Court, Appellate Division, Second Department. February 11, 1903.) 1. NEGLIGENCE-DEFECTIVE APPLIANCE-NOTICE-EVIDENCE.

In an action for personal injury resulting from the fall of a dumbwaiter, caused by the breaking of the sustaining rope, the admission of evidence that some of the strands of the same rope had broken before, and, on the attention of defendant's superintendent being called thereto, he caused the rope to be repaired, was admissible as a warning to defendant that the condition of the rope required watchfulness.

2. SAME CONTRIBUTORY NEGLIGENCE.

Where a tenement house was supplied with a dumb-waiter, which was so arranged in the cellar that people delivering goods would come in * For motion to appeal to Court of Appeals, see 80 N. Y. Supp. 783.

there and use it, and was for the use of anybody coming into the cellar and wanting to send supplies up, it was not negligent for a tenant of the building to thus use it.

Appeal from trial term, Kings county.

Actions by Sarah A. Vandercar against the Universal Trust Company, and John H. Vandercar against the same. From judgments in favor of plaintiffs, and from orders denying new trials, defendant appeals. Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.

George M. Mackellar (Clarence Lexow, on the brief), for appellant. Cyrus V. Washburn, for respondents.

WILLARD BARTLETT, J. These are two actions for negligence, growing out of the fall of a dumb-waiter in an apartment house owned by the defendant. One is brought by the tenant who was injured, and the other by her husband. The dumb-waiter was caused to fall by the breaking of the rope by which it was supported. The cases were tried together by consent. The accident which gave rise to the litigation occurred in September, 1900. A witness,—Annie White, who was called in behalf of the plaintiffs, testified that she had formerly lived in the apartment house from August, 1896, to April, 1900; that while she was there two or three of the strands of the elevator rope broke; that the rope gave out at the top, where it was tied to the dumb-waiter; that before it broke she told Mr. Linn, the secretary of the Universal Trust Company, of the condition of the rope; that a man was sent to repair it, and repaired the strands that were broken. Objections were interposed to this testimony. as it came in, and exceptions duly taken in behalf of the defendant, and, after it was all in, counsel for defendant moved to strike it out, which motion was denied, and defendant excepted. It thus appears. that proof was received and allowed to remain in the case as to the previous existence of defects in the rope, all of which had been remedied after notice to the defendant's agent, and at least several months before the accident of which the plaintiffs complain; and it is earnestly contended that the reception of this evidence and the refusal to strike it out constitute reversible error. I think that the admission and retention of this evidence in the case would be fatal to the judgments if it appeared that after the break in the rope which Mrs. White describes the defendant had substituted a wholly new rope for that which broke. Then the former occurrence would have had no possible relation to the breaking of the rope by which the dumb-waiter was allowed to fall and injure Mrs. Vandercar. We should, in that event, have the case of an accident due to the insufficiency of an entirely new part of the structure. But it seems to me that the fact that the very same rope which gave way and let the dumb-waiter fall on Mrs. Vandercar had previously given way so as to require repair in order to permit its continued use by the tenants, all of which facts were known to the agent of the defendant, might properly be regarded by the jury as a warning to the owner of the

and 114 New York State Reporter

apartment house that the condition of the rope was such as to require watchfulness and inspection to keep it safe for use, so that the failure to take some precautions to insure its continued sufficiency might justify the imputation of negligence. For this reason I am of opinion that the evidence was admissible.

The proposition that Mrs. Vandercar was guilty of contributory negligence as matter of law is based upon the fact that when_the elevator fell she was endeavoring to operate it from the cellar. This seems sufficiently answered by the testimony of the defendant's own janitor, who was in charge of the premises, by which it expressly appears that "the elevator was so arranged in the cellar that people delivering goods would come in there and use it. It was for the use of anybody coming into the cellar and wanting to send stuff up.' The jury were certainly warranted in refusing to impute contributory negligence to a new tenant, such as Mrs. Vandercar was, for making use of the dumb-waiter just as strangers bringing supplies to the occupants of the building were expected by the owner to use it. The proof is adequate to support the verdict. There was no substantial error committed upon the trial, and I therefore advise an affirmance. Judgment and order affirmed, with costs. All concur.

PHOEBUS v. WEBSTER et al.

(Supreme Court, Appellate Division, Second Department. February 11, 1903.) 1. HARMLESS ERROR.

Where evidence erroneously received was so remote in its application to the case that it could hardly have influenced the jury, and no reference was made to it in the charge, the error was not prejudicial.

Appeal from municipal court of New York.

Action by John A. Phoebus against David Webster, impleaded with others. Judgment for plaintiff, and defendant Webster appeals. Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, and HIRSCHBERG, JJ.

Charles N. Morgan (George E. Morgan, on the brief), for appellant.

Paul Armitage, for respondent.

PER CURIAM. The main purpose of this suit is to enforce the liability of the defendant David Webster as a general partner in the firm of Seymour, Johnson & Co. The evidence offered for that purpose was to a great extent substantially the same as that which was deemed by this court sufficient in the case of Chambers v. Webster, 69 App. Div. 546, 75 N. Y. Supp. 31. The appellant argues that there is additional proof in this record, which should change our conclusion; but it seems to us to amount to nothing more than an amplification of the testimony in the former case, not calling for any different result. Certainly, we cannot condemn the verdict as being against the weight of evidence, or without sufficient evidence