Loftus v. Straight Line Engine Co.

Nash, J. : . This is. an appeal from an oi'der of the Special Term denying a motion made by the defendant to restrain the plaintiff from taking any further proceedings in the action until he shall have. paid the costs and disbursements recovered by the defendant in a former action. The rule iá that, if the plaintiff brings a second action without paying the costs- of the first, the court will order payment of the [719] costs of the first suit before allowing the second to proceed. (Cuyler v. Vanderwerk, 1 Johns. Cas. [2d ed.] 247, and note.) The order recites that the'defendant answered before making the application, and the point is made by the respondent that the defendant, not having made the motion until after serving its amended answer, waived by its laches any right which it might have had to the stay. In the case cited it is said, per curiam: “ The defendant is never too late, pending the second suit, before trial, to make his application to stay the proceedings.” In Jackson v. Miller (3 Cow. 57) the motion was made after a verdict in the second action had been taken subject to the opinion of the court; objection was made that the application came too late. Per curiam: “The application comes before us in season if made at any time while the cause is in a course of litigation.” In Spaulding v. American Wood Board Co. (58 App. Div. 314), the case relied upon by the respondent, the motion was made, although not heard, before an answer was served. That fact was referred to in the opinion, ‘and it was observed, that the motion was in time, from which it might be inferred that the motion should be made before serving an answer. But as there was no'discussion of the <puestion, the case cannot be regarded as an authority for overturning the long-established rule that the right is absolute, and that the application for the stay may be made at any time while the cause is in the course of litigation. • The order should be reversed, and order restraining plaintiff’s further proceedings until payment of the costs of the former action granted. * All concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.