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Murphy v. Mundorff

125 N.Y.S. 624 Court N.Y. App. Term Decision date 1910-10-20 English

Delivered by SEABURY, J.

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p. 624
MURPHY v. MUNDORFF.
(Supreme Court, Appellate Term.
October 20, 1910.)

Headnote

1. Costs (§ 277[1] )—Stay of Subsequent Action.
A court of record may stay proceedings in its own court until the costs of a previous action are paid.
[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 1048, 1049; Dec. Dig. § 277.*]
2. Costs (§ 277*)—Stay of Subsequent Action.
Under Code Civ. Proc. § 3347, subds. 4, 6, making section 779, providing that, where the costs of a motion are directed to be paid, all proceedings by the party required to pay are stayed, applicable to the City Court of the City of New York, the City Court has jurisdiction to stay an action pending before it until plaintiff pays the costs awarded against him in the Municipal Court in a prior action on the same cause of action.
[Ed. Note.—For other eases, see Costs, Dec. Dig. § 277.*]
Appeal from City Court of New York, Special Term.
Action by James Murphy^ against Charles Mundorff. From an order of the City Court of the City of New York, staying proceedings on the part of plaintiff until he pay costs in a former action dismissed in the Municipal Court of the City of New York, he appeals.
Affirmed.
Argued before SEABURY, PAGE, and BIJUR, JJ.
John R. McMullen (Rudolph Dugan, of counsel), for appellant.
James F. Brady (Bertrand E. Pettigrew, of counsel), for respondent.

The plaintiff appeals from an order of the City ■Court staying him from proceeding with an action pending in the City Court until the plaintiff pays the costs awarded to the defendant against the plaintiff in an action previously brought in the Municipal Court. The former action, which was brought in the Municipal Court,

p. 625
was based upon a cause of action identical with that alleged in the complaint in the City Court action. In the Municipal Court action the complaint was dismissed, with costs. The costs awarded! have not been paid. Upon this appeal the appellant denies the authority of the City Court to stay proceedings until the costs in the prior action are paid.

The general rule has long been settled that a court of record may stay proceedings in its own court until the costs of a previous action are paid. Cuyler v. Vanderwerk, 1 Johns. Cas. 247 ; Perkins v. Hinman, 19 Johns. 237 ; Youle v. Brotherton, 10 Johns. 364 . This rule was recognized as applicable to the Marine Court of the City of New York. McAdam’s Marine Court Practice (2d Ed.) pp. 213, 214. The rule prescribed by section 779 of the Code of Civil Procedure, where the costs of a motion are directed to be paid by an order, applies to the payment of the costs of an action where another action is commenced between the same parties to recover upon the same cause of action. Wilner v. Ind. Order Ahawas Israel, 122 App. Div. 615 , 107 N. Y. Supp. 497 . Section 779 of the Code is made applicable to the City Court by subdivisions 4 and 6 of section 3347 of the Code. It follows that the order appealed from was within the jurisdiction of the court below, and that in making such an order the discretion of the court was properly exercised.

Order affirmed, with $10 costs and disbursements. All concur.

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