The best test of the question whether the proceedings before the referee, Buggies, ought to be a bar to this action, will be found in the prayer of the plaintiff’s complaint and not in such considerations as the plaintiff may thrust into the argument.
That prayer is: First, that Lyon may be removed as trustee; Second, that he account for all the property which he has received or might have received as trustee; and, third, may pay over the balance awarded against him as the court may direct. All these matters can be reached as well on the accounting and incidentally in that proceeding as well as here, and there is no occasion to harrass the parties by this double proceeding.
The mistake is in supposing that in this suit the order of the court authorizing the purchase of the Franklin street houses and the purchase pursuant to it, can be vacated.
There is no prayer to that effect in the complaint — no such relief is asked for. And in this suit in its present form, as well as in the proceedings to account, that matter must be regarded as res adyudñeata, and I cannot therefore discover any relief that can properly be granted in this suit, that cannot bé fully attained in that proceeding.
There is, however, another reason why the report of the referee was right. It was irregular for the plaintiff to reply to the plea of another suit pending. The true practice was to have obtained a reference to ascertain whether or not both *323suits were for the same matter. If the referee should report that both are for the same matter, that ends the second suit, hut if he should report that they are not, the plea is ipso facto overruled and the suit proceeds upon the other issues.
Such was the practice in the old Court of Chancery and is altogether the most convenient one to adopt in suits under the Code. The plea of another suit pending is to be determined by the record, and it is altogether more convenient that that defense should be disposed of and be got out of the way, before the parties are put to the expense of going down to trial on the merits.
Under the Code, the parties are allowed so far to plead double, that I think it very probable they may form at the same time issues of fact on the merits and an issue of another suit pending. If they may, it would be very mischievous and inconvenient to let both issues be earned down to trial at the same time and the whole merits be gone into, when the suit may be finally terminated on the plea of Us pendens.
The motion to set aside the report must be denied with costs.
[Note—This case was affirmed at General Term. See 16 Barb. 461.]