Julio v. Ingalls

15 Abb. Pr. 429

• Court: New York Supreme Court
• Decided: March 15, 1863
• Status: Published

Opinion

Ingraham, J.

The defendant moves for security for costs, and for an order staying proceedings until the costs of a former action for the same cause, brought in Massachusetts, are paid.

Upon the first branch of the motion the plaintiff proves his residence to be in this State, and that is conclusive.

As to the application for the stay of proceedings until the costs in the action in Massachusetts are paid, that must, also, be denied. The defendant has referred to no case sustaining his motion, and I have not been able to find any. If the action had been still pending, he could not have set up the pendency of such action as a defence; and the same rule, by analogy, applied to this case would be an answer to the motion. The enforcement of that rule has been confined to courts within the State; and not always applied even here, where the different courts proceeded by different- modes of practice, or were governed by different principles in their decisions.

With much more force it and may be said that it should not be applied to cases where the courts were in different States, and, perhaps, governed by entirely different modes of proceeding.

The rule has never been extended to costs in actions pending in other States or countries, and there are good reasons why it should not be.

Motion denied, with $10 costs.