Sullivan v. Hoe

Cohalan, J. Defendant moves to stay the prosecution of an action for a breach of promise of marriage. He contends that the plaintiff should be required to pay the costs taxed in two prior actions instituted by a guardian ad litem on behalf of the plaintiff against the defendant. The first action brought by her was based upon the same state of facts set forth in the complaint in this action, and the second action was for a recovery of damages sustained by the plaintiff by reason of the defendant’s breach of an alleged contract whereby he agreed to maintain and support the plaintiff during her natural life in consideration of the plaintiff agreeing not to bring an action for a breach of promise of marriage. Both of the prior actions were dismissed for lack of prosecution, and judgments for costs were entered against the plaintiff. The undoubted rule is that a stay may be granted in a second action for the nonpayment of costs in a former action where the causes of action are the same in both suits. Schwartz v. Minsker Realty Co., 166 App. Div. 681; Muratore v. Pirkl, 109 id. 146. The liability of the plaintiff to pay costs is not sufficient to bring the case within any exception to this rule. It is my view that this action should not be stayed by reason of the non-payment of costs in the second action, because that action and the action at bar are not based upon the same facts, nor is it the same cause of action. The plaintiff should, however, be required to pay the costs of the first action instituted by her, and to that extent the motion for a stay is granted. Ordered accordingly.