Majority
p. 19Ripley against Benedict.
Headnote
The plaintiff of covenant; and judgment being against him, on demurrer to the declaration, upon certain breaches, ho sued in the supreme court, upon the same covenant, for the same breaches, and others: though the latter accrued after the action in the C. P. commenced, yet held the same cause of action as the first, and proceedings stayed till costs of first action paid.The plaintiff had sued the defendant, in covenant, in the Common Pleas of Saratoga county, upon articles of agree
p. 20
ment, assigning certain breaches. Upon demurrer to the declaration, the O. P. gave judgment against the plaintiff, with leave to amend on payment of costs; which he did not do, but sued for the same breaches here; assigning also a farther breach, which the plaintiff’s attorney swore had happened after the commencement of the suit in the C. P., and of which he could not, therefore, avail himself in the first suit. The costs of the first suit not having been paid,
It was now moved to stay proceedings here till the plaintiff should pay the costs of the suit in the C. P.
W. L. F. Warren, for the motion.
P. H. M’Omber, contra.
The first action was on the same instrument as the present, which also includes the same cause of action as the first. The addition of another cause of action does not so materially change the ground as to destroy the. identity of the two causes. They are still the same ; and it is no answer to the application, to say that the plaintiff goes here for the same cause and more. The proceedings must stay till the costs of the first action are paid.
Motion granted, with costs.