Simpson v. Brewster

1 Sarat. Ch. Sent. 65, 1841 N.Y. LEXIS 361

• Court: Saratoga Chancery Court
• Decided: August 17, 1841
• Status: Published

Opinion

Application to stay proceedings in a suit upon a creditors’ bill until tbe costs for a former suit for the same cause of action were paid. The chancellor decided that a complainant may dismiss his bill at any time before decree, on payment of costs; and the court will grant the motion as a matter of course, upon a proper application. That the order in such cases is that the bill be dismissed upon the payment of the costs of the defendant, to be taxed, or that the complainant have leave to dismiss his bill upon the payment of such costs. But that in neither case is the suit out of court until the costs are actually paid, or at least tendered. Neither can such costs be set off without the special permission of the court for that ^purpose. That if the complainant in such a case neglects or refuses to pay the costs, the proper remedy of the defendant is to proceed as for a contempt, or he may consider the suit as still pending, and proceed accordingly. That if the complainant files a new hill for the same cause of action, without paying the costs of the former, the defendant may plead the pendency of the first suit as a bar to the commencement of the second before the order to discontinue had become absolute by the payment of the costs. Application denied.