I concur in the Conclusion reached by the presiding justice in this case. The claim of the appellant is that his plea in abatement’ should be sustained, for the reason that all the rights of the parties ■can be settled in the action brought by the defendant herein; and that as the court first acquired jurisdiction of that action, thé entire claims of the parties should be adjudicated therein. If it be true that such is the necessary result of a determination of the matters set up in his complaint in that action, then 1 am of opinion that his claim should be sustained. It matters not whether his action be denominated legal or equitable; if under it it can result in the determination of all the matters in controversy between the parties, then his plea in abatement ought to be sustained. The general rule is that where the court has equal or concurrent jurisdiction, that will be continued in which the process was first served; and this without regard to whether the proceeding is pending in the same or another court, and without reference to whether one be legal and the other, equitable; as the object to be accomplished in each is the .same. (Schuehle v. Rieiman, 86 N. Y. 270 ; Draper v. Stouvenel, 38 id. 219 ; Groshon v. Lyon, 16 Barb. 461; Lacustrine Fertilizer Co. v. Lalce Guano & F. Co., 82 N. Y. 476.) This being the established rule, the question presented by this appeal is to be determined by a consideration as- to whether the rights of the parties in their ■entirety can be settled in the first action. I am of opinion that the plaintiff has failed to sustain his contention in this regard; and the reasons for such opinion are stated by the learned referee in his ■opinion overruling the plaintiff’s claim. It was determined by the Appellate Division in the fourth department that the first action was an action at law to recover a sum of money; and while in view of the manner in which the pleading in that action was framed the burden was assumed, by the plaintiff of taking and stating an account, yet the relief demanded and all to which the plaintiff was *376entitled was the recovery of a sum of money. (Wisner v. Consolidated Fruit Jar Co., 25 App. Div. 362.) It is entirely clear, as Stated by the referee below, that such action need proceed no fur- • ther than was necessary to reach a determination that the plaintiff was not entitled to recover any sum of the defendant; and although it might be made to appear that the defendant was entitled to recover of the plaintiff in that action, yet it would be entitled to no affirmative relief and could have no affirmative judgment in its favor, unless it. joined issue therein, and by counterclaim sought to recover affirmatively any sum to which it might .show itself entitled. But this-result would not necessarily be produced by. the averment of plaintiff’s . complaint; it could only be had, if the facts warranted, by an affirmative pleading upon the part of the defendant.'
It was said by Judge Rapadlo, in speaking of a similar claim, “.and, moreover, he was not bound to rely on the credit given him imGrallaudet’s complaint, for if he succeeded in defeating Gallandet’s. claims he could not, under that complaint, have obtained an affirmative, judgment for the sums due him. To entitle himself to such a. judgment it was necessary that Brown should set up his own claims-' by way of counter-claim, and this, as has already been said, he was-not bound to do.” (Brown v. Gallaudet, 80 N. Y. 413, "417, 418.) And, further, it was stated, “ He had the right to reserve his own claims for a cross-action, the conduct of which he could control, and to confine his defénse in the action brought by Gallaudet to such, matters as would defeat Gallaudet’s claims set up in that action.”' (P. 417.)
The same rule has been applied in other cases (Carlin vi Richardson, 17 N. Y. St. Repr. 399; McGrath v. Maxwell, 17 App. Div. 246), and in other cases cited by the learned referee.
This being the status of these two actions, it would seem that both should be permitted to proceed, as both seem to be necessary to settle all the matters in controversy between these parties.
I am, therefore, in favor of the affirmance of the interlocutory-judgment.
Cullen, Bartlett and Woodward, JJ., concurred.
Interlocutory judgment affirmed, with costs.