Singer v. Garlick

McLaughlin, J.: This appeal .is from an order, denying a motion to stay proceedings in the action until‘.the costs in a prior action brought, upon the same cause of action were .paid. z . The plaintiff, on the 14th of'April, 1905, brought an action in the County Coiirt of Kings county. Issue was joined therein- and the .action thereafter came on for.trial, which resulted in a dismissal of' the complaint, with $107*33 costs and disbursements. A copy of the judgment, with notice of entry,, was duly served upon plaintiff’s attorney. Do appeal was taken from the judgment. - Subsequently -the plaintiff brought this action in the Supreme Court — the venue being laid in the county of Dew York —to recover Upon the same cause of action. A motion was thereupon, made to stay the prosecution of this action until the costs of the former action' were paid. The motion was denied-.and the defendant appeals. ■ The fact is uncontradicted that this action is brought to recover upon the same cause of action upon which a recovery was- sought iu - the former action,, in which the plaintiff was unsuccessful, and in . which costs were awarded to the defendant, and that such, costs have not been paid. It has many times been held that where a plaintiff is unsuccessful [283] in an action, and costs are therein awarded to the defendant, another action to recover upon the same cause of action cannot be maintained until the costs are paid. (Ingrosso v. Baltimore & Ohio R. R. Co., 105 App. Div. 494; Wilner v. Independent Order Ahawas Israel, 122 id. 615; Bigelow v. Drummond, 109 id. 132; Muratore v. Pirkl, Id. 146.) The order appealed from; therefore, must be reversed, with ten dollars costs and disbursements, and the motion granted, with- ten dollars costs. Patterson, P. J., Ingrai-iam,. Claree and Houghton, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. .