Ingrosso v. Baltimore & Ohio Railroad

105 A.D. 494, 94 N.Y.S. 177

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1905
• Status: Published

Opinion

McLaughlin, J. :

The plaintiff brought an action in the City Court of the city of Hew York to recover damages for personal injuries alleged to have been sustained by reason of defendant’s negligence. The action subsequently came on for trial on defendant’s notice, and the complaint was dismissed and judgment entered for the defendant against the plaintiff for the sum of sixty-eight dollars and thirty-two cents costs. The plaintiff and his attorney were present in court when the complaint was dismissed, but neglected and refused to proceed with the trial. Thereafter the plaintiff moved to open the default,^which motion was granted upon condition that he should, within five days thereafter, pay thirty-five dollars “ trial costs.” He neglected to pay within the time specified and asked for an extension, which was granted, and he also neglected to pay the costs within the extended time, but instead brought this, actioi in the Supreme Court to recover upon the same cause of action Thereupon the defendant moved to stay the prosecution of this action until the costs of the prior action had been paid. The motion was denied and the defendant has appealed.

I think the order should be reversed. Where the costs of a motion in an action are directed to he paid, all proceedings on the p.art of the party required to pay the same — except to review or vacate the order — are stayed without further direction of the court until the payment thereof. (Code Civ. Proc. § 779.) The same rule should be applied to the payment of costs in an action where another action is commenced between the same parties to recover upon the same cause of action. Indeed, such rule has been applied in numerous cases. (Cuyler v. Vanderwerle, 1 Johns. Cas. 247; Perkins v. Hinman, 19 Johns. 237; Edwards v. Ninth, Ave. R. R. Co., 22 How. Pr. 444; Richardson v. White, 27 id. 155; Spaulding v. American Wood Board Co., 58 App. Div. 315 ; Barton v. Speis, 73 N. Y. 133.) The defendant having successfully defended the prior action is entitled — before it is put to the trouble and expense of defending this one — to receive such indemnity as the costs of the former action will afford. The motion was made promptly and before an answer was interposed.

The case is clearly distinguishable from Dare v. Murphy (18 Abb. 27. C. 466). In that case there was proof to the effect that the former action was dismissed by reason of the negligence of the plaintiff’s attorney and there was also a question as to whether the issues involved in the two actions were identical. Here no such questions arise. The cause of action set out in the complaint in the City Court and the one set out in the complaint in this court are precisely the same, and no claim is made that the action in the City Court was dismissed for a fault other than the plaintiff’s.

I am of the opinion that the order, appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

O’Brien and Ingraham, JJ., concurred; Hatch, J., dissented.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.