Summary
In Singer v. Garlick (123 App. Div. 282) we held that where a plaintiff is unsuccessful 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. It is entirely immaterial whether the second action was brought prior or subsequent to the award of costs in the first action. It is the bringing of two actions to recover for the same cause of action that is sought to be prevented.
Summary of this case from Conlon v. National Fireproofing Co.Opinion
January 10, 1908.
Louis Cohn, for the appellant.
Julius Blumofe, for the respondent.
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.
The plaintiff, on the 14th of April, 1905, brought an action in the County Court 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. No appeal was taken from the judgment. Subsequently the plaintiff brought this action in the Supreme Court — the venue being laid in the county of New 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 in 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 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., INGRAHAM, CLARKE and HOUGHTON, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.