Majority
p. 444NEW YORK COMMON PLEAS. I. W. Edwards agt. The Ninth Avenue Railroad Company. Special Term, January, 1860.
Headnote
A stay of all proceedings on the part of the plaintiff in a second action, will be ordered until all the costs of the first suit for the same cause are paid> and also the costs of the motion to stay.This was a motion to stay all proceedings in the present action, until the costs of a former action for same cause in the marine court (wherein there was judgment of non-suit) were paid, as also costs of the present motion.
The railroad, by their attorneys Abbett and Ashmead, appeared in support of the rule, and cited several cases showing that it had been the uniform practice, since the case of Hacker agt. Newborn, (Style’s Rep., 413, 1653,) to thus stay all proceedings in the second action until the costs of the first were paid. They also cited many other English cases, and the following New York cases : Dresser agt. Brooks, ( 5 How., 16 ;) ex parte Stone, ( 3 Cow., 381 ;) Cuyler agt. Vanderwick, (1 John. C., 241;) Taylor agt. Vandervoort, ( 9 Wend., 449 ;) Perkins agt. Hinman, ( 19 John., 231 .)
Wm. McDermott, for plaintiff, opposed the granting of the stay.
after hearing the argument of counsel, determined that all proceedings must stay in this action until the plaintiff paid the defendant the costs incurred in the marine court, and also costs of the present motion. That'
p. 445
it would be a dangerous precedent to permit a party to harass another by first discontinuing in one suit and then allowing him to commence another before payment of costs of first action. That the uniform practice of this court is, in such cases, to stay the proceedings until all the costs of the former suit are paid, and also the costs of the motion to stay, &c.
Order entered in accordance with decision.