Hyperlawhypertext legal database Hoefle v. American Laundry Machinery Manufacturing Co. 161 A.D. 679

← Cases

Hoefle v. American Laundry Machinery Manufacturing Co.

161 A.D. 679 Court Second Department, Decision date 1914-03-20 English

Contents

Majority

p. 679
Emil Hoefle, as Trustee in Bankruptcy of the Abramson-Engesser Company, and Others, Respondents, v. American Laundry Machinery Manufacturing Company, Appellant.
Second Department,
March 20, 1914.

Headnote

Costs — stay of action pending payment of costs in prior action for same cause.
Where, after the entry of a judgment dismissing the complaint, with costs to the defendant, another action is commenced in another county for the same cause and against the same defendant by assignees of the
p. 680
cause of action and the trustee in bankruptcy of the original plaintiff, all of whom were beneficially interested in the first suit, the defendant’s motion for a stay of proceedings pending the payment of costs in the first action should be granted.
Appeal by the defendant, American Laundry Machinery Manufacturing Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26th day of December, 1913, denying defendant’s motion for a stay of proceedings pending the payment of the judgment for costs, amounting to $127.78, awarded to the defendant herein, in an action in the Supreme Court commenced against the defendant by the Abramson-Engesser Company.
Julius B. Baer, for the appellant.
J. A. Seidman, for the respondents.

The present three plaintiffs are the assignee in bankruptcy joined with two prior assignees of the cause of action under an assignment before the bankruptcy. These prior assignees, Messrs. Engesser and Abramson, according to the affidavits filed in the New York county action, were beneficially interested in that suit. The judgment in that action for costs, having been recovered after the trustee’s appointment, could not be here offset. (Knight v. Rothschild, 132 App. Div. 274 , 278.) There is, therefore, a good ground to stay the present suit until the previous judgment for costs shall be paid. (Genet v. Davenport, 58 N. Y. 607 ; Barton v. Speis, 73 id. 133; Behrens v. Sturges, 138 App. Div. 637 .) Whether or not the assignee in bankruptcy could be charged personally with these costs is not now involved. The real question is whether by bringing a second suit in this county the plaintiffs can escape liability for the costs imposed in the original suit, in which the trustee and the two other plaintiffs actively and beneficially participated. As was held in Nelligan v. Groth ( 126 App. Div. 444 ), the liability of the person beneficially interested for costs “ is absolute, and to the same extent as if he was the plaintiff.” (Code Civ. Proc. § 3247.) Defendant has, therefore, a right to

p. 681
have the costs of the original suit paid him before he can be put to the trouble and expense of defending another action for the same cause.

The order appealed from is reversed, with ten dollars costs and disbursements, and defendant’s motion for a stay granted, with ten dollars costs.

Jerks, P. J., Burr, Thomas, Carr and Putnam, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and defendant’s motion for a stay granted, with ten dollars costs.

Cases cited