Conlon v. National Fireproofing Co. — 112 N.Y.S. 652

Majority

p. 652

CONLON v. NATIONAL FIREPROOFING CO. et al.

(Supreme Court, Appellate Division, First Department.

October 23, 1908.)

Headnote

1. Abatement and Revival (§ 15*)—Pendency of Other Action—Effect of Dismissal.

*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

The pendnecy of one action is a defense to a second action on the same cause of action; but the dismissal of the first action for want of prosecution invalidates the defense.

[Ed. Note.—For other cases, see Abatement and Revival, Cent. Dig. § 116; Dec. Dig. § 15.*]

2. Costs (§ 277*)—Enforcement—Stay of Subsequent Action.

Under the rule preventing a number of actions for the same cause of action when the controversy may be determined in the first action, where one brings two actions on the same cause of action, and the first is dismissed for want of prosecution, with costs against plaintiff, proceedings in the second action may be stayed until such costs are paid, as it is immaterial whether the second action was brought prior or subsequent to the award of costs in the first action.

[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 1048, 1051, 1052; Dec. Dig. § 277.*]

Appeal from Special Term.

Action by Frank Conlon against the National Fireproofing Company and others. From an order denying the motion of defendant the National Fireproofing Company for a stay of proceedings, it appeals.

Reversed.

Argued before PATTERSON, P. J„ and INGRAHAM, LAUGH-EIN, CLARKE, and SCOTT, JJ.

George W. Smyth, for appellant.

Edward Mandel, for respondent.

The plaintiff brought two actions to recover for personal injuries upon the same cause of action, in both of which issue was duly joined and the cases placed upon the calendar. Upon the making up of a new calendar, plaintiff failed to file a new note of issue in the first action commenced, whereupon the defendant National Fireproofing Company moved to dismiss the complaint therein. This motion was granted, and an order entered dismissing the complaint in the first action, and judgment was entered against the plaintiff for the costs. Subsequently the defendant National Fireproofing Company made a motion for a stay of proceedings in the second action until the payment of the costs upon the dismissal of the first action, and, that motion having been denied, the defendant appeals.

The pendency of the first action would have been a defense to this' action, based as it was upon the same cause of action. The first action having been dismissed for want of prosecution, that invalidated what, but for such dismissal, would have been a defense. It must be improper to allow a second action for the same cause of action to be commenced when one action was pending, and immediately after the commencement of the second action have the first dismissed,

p. 653

and thus avoid the necessity of paying costs of the first action as a privilege of continuing the second. This would allow a method of evading the very salutary rule which prevents a number of actions for the same cause of action when the controversy could be determined in the first action commenced. It is quite essential that this rule should be strengthened, rather than relaxed. The case of Barton v. Speis, 73 N. Y. 133 , clearly recognizes the existence of the power in this court to compel the payment of these costs. In Singer v. Garlick, 123 App. D,iv. 232, 107 N. Y. Supp. 972 , we held that where a plaintiff is unsuccessful in an action, and costs are therein awarded to the defendant, another action to recover upon the same cause of action cannot be maintained until the costs are paid. It is entirely immaterial whether the second action was brought prior or subsequent to the award of costs in the first action. It is the bringing of two actions to recover for the same cause of action that is sought to be prevented.

It follows that the order appealed from must be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.

Cases cited

Barton v. Speis 73 N. Y. 133 N.Y. 1878-03-19 p. 653