Farrell v. New York Juvenile Asylum — 2 A.D. 496

Majority

p. 496

Patrick Farrell, as Administrator, etc., of James Farrell, Deceased, Respondent, v. New York Juvenile Asylum, Appellant.

Headnote

Costs — imposed as terms for opening a, default — must be paid before another similar action can be brought.

Upon an appeal from an order made in an action denying the defendant’s motion for a stay of proceedings until the costs of an action in the Superior Court were paid, it appeared that, in an action brought by the plaintiff as adminis • trator in the Superior Court to recover damages resulting from the death of his.

p. 497

intestate, caused by the alleged negligence of the defendant, the complaint was; dismissed upon a default. Leave to open the default was granted the plaintiff upon the payment of costs, which the plaintiff did not pay, and judgment was-entered dismissing the complaint, with costs.

Subsequently the plaintiff commenced a new action in the Supreme Court, the. complaint in which was substantially the same as that in the action brought in the Superior Court.

Held, that the plaintiff could not maintain an action in this court, evidently designed to evade the terms imposed by the Superior Court, unless he complied with those terms and paid the costs imposed.

Appeal "by the defendant, the New York Juvenile Asylum, from an order of the Supreme Court-, made at the New York Special Term and entered in the office of the clerk of the county of New York on .the 7th day of February, 1896, denying the defendant’s motion for a stay of proceedings in the action until the costs of the. former action are paid.

Theron G-. Strong, for the appellant.

Albert D. Haff, for the respondent.

We think this motion should have been granted.

The plaintiff, as administrator, commenced an action in the Superior Court to recover for the death of the plaintiff’s intestate, caused by the negligence of the defendant. When that action came on for trial the plaintiff suffered a default, and the complaint was dis- ■ missed. Subsequently plaintiff moved to open the default, and that motion was granted upon payment of the taxable costs of the-action. The plaintiff failed to pay such costs, and judgment was entered dismissing the complaint, with' costs. Subsequently plaintiff' commenced a new action in the Supreme Court upon the same cause of action, the complaint being substantially the same as the complaint in the action in the Superior Court. It thus being perfectly apparent that the new action was commenced'for the purpose of evading & compliance with the terms imposed by the Superior Court as a condition of opening the default, it would be opposed to the orderly practice to allow a party to a litigation thus to trifle with the orders of the court, and by allowing an action to drop and

p. 498

commencing a new action to obtain the same relief, without complying with the terms imposed for relief from the consequence of a neglect to prosecute his action.

The order, should, therefore, be reversed, with ten dollars costs -■and disbursements, and the motion granted.

Present —Van Bbunt, P. J., Williams, Patterson, O’Brien rand Ingraham, JJ.

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