Park agt. Morris Tool and Axe Co,

thing be ordered of the manufacturer for a special purpose, and it be supplied and sold for that purpose, there is an implied warranty that it is fit for that purpose.

The plaintiffs were manufacturers, and the defendants ordered the steel for the purpose of being made into axes. The case is thus brought within the principle asserted by Parsons, and the referee was justified in finding a warranty that the steel would make as good axes as the best English steel.

The name of the defendants' company was "Axe and Tool Company." This was notice to the plaintiffs of the use to which the steel was to be applied, and the warranty must be held to be that the steel would make either axes or tools of as good quality as the best English.

The case of Jones agt. Bright (5 Bing., 533), is almost identical in its facts with the one before us. There the defendant was a manufacturer and vender of copper, and the plaintiff applied to him for copper for sheathing a vessel, the defendant replied he would serve him well. The copper was received by plaintiff, put on his vessel, but proved to be defective by reason of some latent defect, and it was held there was an implied warranty that the article was fit for the purpose for which it was sold.

In this class of warranties the measure of damages is the difference between the value of the defective article made from the defective material furnished, and the value of the article if made from the material as represented. (Passenger agt. Thornburn, 34 N. Y., 634; Milburn agt. Belloni, 39 N. Y., 53).

In other words the measure of damages in this case, would be the difference in value between the axes made from the defective steel and their value if the steel had been equal to the best English steel. This is the rule applied by the referee.

It is insisted by the plaintiffs' counsel that the defendants persisted in making axes from plaintiffs' steel after it was

Park agt. Morris Tool and Axe Co.

ascetained that the steel was of bad quality, and that they ought not to be allowed damages after such notice.

I agree with the counsel in his proposition, but it does not appear by the evidence that the defendants did persist in making axes after they knew of the bad quality of the steel. The only evidence I find on the subject is that one of the witnesses, who says he tried one of the axes in January or February, 1869, and found it defective. They commenced making from plaintiffs steel in December, 1868, and made up the whole quantity in four months.

Defects in a single axe, or even 100 axes, would not, it would seem from the evidence, be conclusive evidence that the steel was of bad quality, as it appears that large numbers made from the best English steel proved defective and were returned.

There is no date before us, nor was there any before the referee that enabled him to find that the defendants manufactured axes after notice that the steel was unfit for the purpose.

None of the objections taken by plaintiffs' counsel to the admission of evidence were well founded; the judgment must

be affirmed.

Daily agt. Kingon.

SUPREME COURT.

HENRY DAILY, Jr., plaintiff, agt. JANE AUGUSTA KINGON, defendant.

Where an action is commenced and at issue, to foreclose a third mortgage on premises, the mortgagor cannot, on motion, stay the mortgagee's proceedings, on the ground that a judgment of foreclosure on the first mortgage (which last action of foreclosure was commenced simultaneously with the other action), made it necessary for the mortgagee in the third mortgage to seek his remedy against the surplus moneys on the first mortgage. The third mortgagee had a right to have the issue in the action tried.

Kings County Special Term, March, 1871.

THIS was an action to foreclose a mortgage made by the defendant, to secure the sum of $7,500, which plaintiff had loaned her. Prior to this mortgage, there were two other mortgages, and an action, to foreclose the first one, was brought simultaneously with this action, but before this action on the third mortgage came on for trial, a judgment of foreclosure and sale had been obtained on the first mortgage by the owner. The owner of the judgment on the first mortgage had advertised the premises for sale under his decree. On the day the present action was called for trial, the defendant's attorneys procured an order from his Honor, Justice GILBERT, requiring the plaintiff to show cause, on a day therein named, before a justice at a special term, why a stay of proceedings should not be granted the defendant in this action, until the sale of the premises in question, under the decree entered on the first mortgage, and why the plaintiff should not be precluded from trying this action, and why plaintiff should not be confined in his remedy to his application against any surplus moneys which might arise from

Daily agt. Kingon.

the sale of the premises under the decree of foreclosure entered in the action to foreclose the first mortgage.

This order to show cause, embraced a stay of plaintiff's proceedings pending the hearing and decision of the motion, The motion came on for argument before his Honor, Justice GILBERT, sitting at special term.

DENNIS MCMAHON, counsel for the defendant, and in favor of the motion.

I. This is a motion made by defendant, mortgagor, to restrain the further prosecution of a foreclosure suit commenced by the plaintiff, the mortgagee on a third mortgage, until the sale on a previous suit against the same property, to which the plaintiff is a party, for the purpose of avoiding unnecessary trouble and expense.

II. As a complete determination of the rights of the parties can be had in the suit on the first mortgage, the present case comes within the reason of the rule which prevents a second suit being had between the same parties, for the same subject matter, and the plaintiff's proceedings may be stayed. See 3d. Abb. P. R., (377,) where the court enjoined a party to a suit pending therein from sueing the adverse party in a foreign court, upon the same subject matter involved in the said suit, where the parties all resided in this state, the cause of action arose there, and the said suit could determine the whole proceedings. See also 3d How., 65, where a statutory foreclosure was enjoined until the termination of a previous foreclosure suit.

III. Courts of equity have the power to interfere on principles of convenience, to prevent litigation which is considered to be either unnecessary, and therefore vexatious, or else ill adapted to secure justice. (Lord CHANCELLOR in 16 Beav., 279, 289; Mutual Life Ins. Co. agt. Bowen, 47 Barb., 618.)

IV. The plaintiff will not be prejudiced by delay inas

Daily agt. Kingon.

much as, if he is on the present trial sought to be stayed, he will be obliged to give notice of sale which will bring it to about, the time the sale on the first mortgage was adjourned to.

V. The relief prayed for will relieve the already harrassed defendant, Jane Augusta Kingon, from a great deal of unnecessary trouble and expense, without impairing the rights of the plaintiff. (19 N. Y., 440.)

VI. There has to be a reference, about the disposal of the surplus moneys on the sale of the premises under the decree on the first mortgage, even if Mr. Daily is permitted to proceed in this case, inasmuch as there is a second mortgage, which is a prior lien to Daily's mortgage. On that reference, Mr. Daily's rights could be settled cheaply and expeditiously, and in the Mutual Life Ins. Co. agt. Bowen, (47 Barb., 618,) this court decided, that it not only has the power, but it is its duty to provide for the equitable distribution or disposition of the surplus moneys.

VII. In the action on the first mortgage, Mr. Daily was a party. By the practice of the court, it would have been improper for him to have interposed an answer setting up the mortgage, which he now seeks to foreclose, consequently, the decree in the action on the first mortgrge is a bar forever to him, except so far as claiming his money under the foreclosure. (Benjamin agt. The Elmira R. R. Co., 49 Barb., 441.) Now, if he could not set up his mortgage by answer, can he do indirectly by maintaining his foreclosure suit, that which he could not do directly. We submit not.

VIII. An order staying proceedings, is the proper remedy, whereas in the present instance, both suits are in the same court. (4 How., 350; 3 Code, R. P., 86; 11 How., 365.)

H. DAILY, plaintiff in person, opposed the motion.

1. The defendant in this action has interposed an answer