LEARNED HAND, District Judge.
[1] That the stay of a second action till payment of costs is, in part certainly, to collect the costs appears from the fact that, if the plaintiff’s body be seized on execu[349]*349tion, the rule does not apply. However, the rule does not wholly depend upon this. Ex parte Stone, 3 Cow. (N. Y.) 380. It is also used merely to prevent vexatious litigation (Flemming v. Insurance Co., 4 Pa. 475), and in the interests of justice. It has been applied in the suite court where the prior action was in a federal court (Jackson v. Carpenter, 3 Cow. [N. Y.] 22); and it has been applied, also, when the first action was in the state court and the second, though brought in that court, had been removed (Buckles v. Chic., M. & St. P. Ry. Co. [C. C.] 47 Fed. 424). It is true that it is not applied between two for-* eigu states, and perhaps the reason is not clear, if it be not wholly to compel payment of the former costs; but it is a just rule, arising to prevent needless litigation, and should be favored.
[2] So far as concerns this court’s discretion, no facts appear in the case at bar, except that the first action was' dismissed. No reason is given for relieving the plaintiff of the usual results of an unwarranted litigation. If she is wholly destitute, and will within five days take an oath in forma pauperis, swearing as well that the condition imposed by this order will absolutely prevent her prosecuting the action, she will be relieved; but, if she has the means of paying the costs, she must pay them. As a further condition she must stipulate, in the event of success, to allow the defendant to credit the judgment for costs, with interest, upon any execution she may take out herein.
The motion is denied upon these conditions; otherwise, it will be granted.
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