Wilner v. Independent Order Ahawas Israel

122 A.D. 615, 107 N.Y.S. 497, 1907 N.Y. App. Div. LEXIS 2514

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 6, 1907
• Status: Published

Opinion

McLaughlin, J.:

The plaintiff brought an action in the Municipal Court- of the city of Mew York against the defendant to recover the sum of $500. Issue was joined but when the action came on for trial plaintiff did not appear and the complaint was dismissed on defendant’s motion, with thirty-two dollars and forty-one cents costs. Mo motion was made, so far as appears, to open the cjefault, nor were the costs paid. Subsequently this action was brought to recover upon the same cause of action. Thereupon defendant moved to stay the prosecution of this action until the costs of the prior action were paid. The motion was denied and defendant appeals.

Where the costs of a motion in an action are directed to be paid, ail proceedings on the part 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.) This court has held that 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. (Ingrosso v. Baltimore & Ohio R. R. Co., 105 App. Div. 494; 94 N. Y. Supp. 177.) This seems to be the general rule (Cuyler v. Vanderwerk, 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. 314 ; Barton v. Speis, 73 N. Y. 133), and it will be enforced unless special facts are presented which indicate that an exception ought to be made. The fact that a person is pecuniarily unable to pay the costs of the prior action is not an excuse sufficient to bring the case within the exception. The reason for this rule is a wholesome one. It has for its basis the fact that, where a party has successfully defended a prior action, he ought not to be put to the trouble and expense of defending another action predicated upon the same cause of action until he has been paid the costs awarded to him by the court in the action first commeneed. Provision is made in the statute how a person who is pecuniarily unable to prosecute an action may do-so as a poor person. (See Code Civ. Proc. § 458 et seq) Here it does not appear, except by an allegation of the plaintiff's attorney, which is made upon information and belief, that the plaintiff is pecuniarily unable to pay the costs of the former action. Ho affidavit is presented, nor is any excuse given by her why she has not paid such costs.

The order appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Patterson, P. J., Ingraham, Houghton and Scott, JJ., concurred.

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