June 13, 1977
In an action to recover moneys retained by the defendant pursuant to a contract between the parties, plaintiff appeals from an order of the Supreme Court, Nassau County, dated September 29, 1976, which stayed the prosecution of this action pending a determination of defendant's appeal from a judgment of the same court, entered May 6, 1976. Order affirmed, with $50 costs and disbursements. A case for a stay is presented where the decision in one action will determine all questions in the other action, and the judgment in one action will dispose of the controversy in both actions (Pierre Assoc. v Citizens Cas. Co. of N.Y., 32 A.D.2d 495, 497). Thus, if an appeal is taken from a judgment in the first action before the bringing of the second action, the first action would, by reason of the appeal, be deemed to be pending, and would prevent the plaintiff from bringing a second action until the determination of the appeal (see Porter v Kingsbury, 77 N.Y. 164). Moreover, in view of the result in the prior action, which is being decided simultaneously with this one (see Rael Automatic Sprinkler Co. v Solow Dev. Corp., 58 A.D.2d 600), the granting of the stay was a proper exercise of discretion. The factual issues underlying the original complaint encompass those raised in the complaint now before us and all such issues should be heard by the same jury. Hopkins, J.P., Rabin, Hawkins and O'Connor, JJ., concur.