Dare v. Murphy — 18 Abb. N. Cas. 466

Majority

p. 466

DARE v. MURPHY.

N. Y. Supreme Court, First District, Chambers;

March, 1887.

Headnote

1. Stay of proceedings for non-payment of costs.] A defendant has no absoluto right to a stay of proceedings until payment of the costs of a former action for the same cause, but the matter rests in the sound discretion of the judge, depending upon the circumstances of the particular case.

2. The same; when refused.] Where the former action was dismissed for want of prosecution, through the neglect of the plaintiff’s attorney and without his knowledge, and the issues in the two actions were not identical, the former being brought for salary to the time of its commencement, and the latter for salary accrued after as well as before the former action,—Held, proper to deny the application for a stay for non-payment of the costs of the former action.

Motion by defendant for a stay of proceedings.

In May, 1883, plaintiff brought an action in the marine court for salary alleged to have accrued under a written contract of employment for five years, between August 15, 1882, and the date of the commencement of the action, amounting to $762.39. That action was dismissed for want of prosecution, upon motion by the defendant granted by default, and judgment entered against plaintiff for $22.16 costs.

This action was brought upon the same contract for salary alleged to have accrued between August 15, 1882, and December 15, 1886, amounting to $4,507.40, the claim including that made in the marine court action, though also covering a claim for salary subsequently accrued.

In opposition to this motion by defendant for a stay of all proceedings on the part of the plaintiff until payment of the costs of the marine court action, plaintiff alleged that he had entrusted the suit in the marine court to an attorney,

p. 467

relying upon him for its proper management; that he finally learned that the attorney had given up the practice of the law; that he was unable to ascertain his whereabouts or the condition of the suit, until after he had retained his present attorney, and then it was discovered that the action had been dismissed for want of prosecution ; and he alleged that the present action was brought in good faith and with no desire to vex or harass the defendant.

Martin <6 Smithy for the defendant, and the motion.

Denis A. Spellissy, for the plaintiff, opposed.

There is no absolute right in a defendant to demand the judgment of the court forbidding the prosecution of a second suit until the costs of a former action are paid. It is in equity depending generally upon the circumstances of each particular case, and addressed very much to the sound discretion of the judge to whom the application is made (McMahon v. Mutual Benefit Life Ins. Co., 12 Abb. Pr. 28 ). The cases in which orders have been made staying proceedings in an action until the costs of a former action have been paid, have usually been those in which the former action was disposed of by a trial upon the merits.

The plaintiff in the present action swears that the former action brought by him in the marine court was dismissed for want of prosecution through the neglect of his attorney and without his knowledge. Moreover, while the cause of action now set up in the complaint includes the cause of action set up in the complaint in the marine court, there may be some question whether the issue can be regarded as identical within the decisions in the cases where proceedings have been stayed in an action until the costs of a former action have been paid.

The plaintiff and his attorney insist that the present action is brought in good faith, and, upon the whole, 1 think it a proper exercise of discretion to deny the motion, with $10 costs to abide the event.