Fransioli v. Boorman

Appellate Terms of the Supreme Court of New York

Fransioli v. Boorman

84 N.Y.S. 128

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 22, 1903

StatusPublished

This text of 84 N.Y.S. 128 (Fransioli v. Boorman) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fransioli v. Boorman, 84 N.Y.S. 128 (N.Y. Ct. App. 1903).

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Opinion

GILDERSLEEVE, J.

In December last, the appellant brought an action in the City Court against the respondents to recover the balance due on a judgment obtained by him against them. The action was at issue and on the trial calendar March 5th last, on which day, the appellant being in default, the complaint was dismissed, with $73.20 costs. Instead of moving to open his default, the appellant commenced another action against the same parties defendant for the same cause of action stated in the complaint in the first suit. Thereupon the respondents moved for a stay of the second action until the costs in the first one should be paid. The court granted this motion, and from the order staying the appellant’s proceedings until the costs were paid, this appeal was taken. The obvious and ordinary mode of obtaining relief in the circumstances was for the appellant to move to open the default, and such a motion would probably have been granted, but he chose to bring a new suit for the same cause of action, apparently in the expectation of avoiding the payment of any costs whatever. The decision of the court below was strictly in accordance with established practice. Hill v. Grant, 2 Thomp. & C. 467; Bates v. Dickerson (Sup.) 12 N. Y. Supp. 773; Sprague v. Bartholdi, 68 Hun, 555, 22 N. Y. Supp. 1090; Farrell v. Juvenile Asylum, 2 App. Div. 496, 37 N. Y. Supp. 1118; Spaulding v. American, etc., 58 App. Div. 314, 68 N. Y. Supp. 945.

Order affirmed, with $10 costs and disbursements. All concur.

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GILDERSLEEVE, J.

In December last, the appellant brought an action in the City Court against the respondents to recover the balance due on a judgment obtained by him against them. The action was at issue and on the trial calendar March 5th last, on which day, the appellant being in default, the complaint was dismissed, with $73.20 costs. Instead of moving to open his default, the appellant commenced another action against the same parties defendant for the same cause of action stated in the complaint in the first suit. Thereupon the respondents moved for a stay of the second action until the costs in the first one should be paid. The court granted this motion, and from the order staying the appellant’s proceedings until the costs were paid, this appeal was taken. The obvious and ordinary mode of obtaining relief in the circumstances was for the appellant to move to open the default, and such a motion would probably have been granted, but he chose to bring a new suit for the same cause of action, apparently in the expectation of avoiding the payment of any costs whatever. The decision of the court below was strictly in accordance with established practice. Hill v. Grant, 2 Thomp. & C. 467; Bates v. Dickerson (Sup.) 12 N. Y. Supp. 773; Sprague v. Bartholdi, 68 Hun, 555, 22 N. Y. Supp. 1090; Farrell v. Juvenile Asylum, 2 App. Div. 496, 37 N. Y. Supp. 1118; Spaulding v. American, etc., 58 App. Div. 314, 68 N. Y. Supp. 945.

Order affirmed, with $10 costs and disbursements. All concur.

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Bluebook (online)

84 N.Y.S. 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fransioli-v-boorman-nyappterm-1903.

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