Seiler v. Klugman — 149 N.Y.S. 436

Majority

p. 436

SEILER v. KLUGMAN.

(No. 6167.)

(Supreme Court, Appellate Division, First Department.

October 23, 1914.)

Headnote

Costs (§ 277^[1] ) — Payment—Stay oe Proceedings.

A second suit upon substantially the same cause o£ action as the first will not be permitted until the costs of the first have been paid.

[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 1048-1060; Dec. Dig. § 277.*]

Appeal from Special Term, Bronx County.

Action by Isaac Seiler against Julius Klugman. Erom a judgment denying a motion to stay all proceedings until payment of costs incurred in a prior action.

Defendant appeals, order reversed, and motion granted.

See, also, 160 App. Div. 928 , 145 N. Y. Supp. 1145 .

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.

p. 437

Myers & Goldsmith, of New York City (Josiah Canter, of New York City, of counsel), for appellant.

Rudolph Marks, of New York City, for respondent.

Examination of the papers discloses that the prior action in the City Court was substantially for the same cause of action as the one at bar. The courts of this state have repeatedly held, under similar circumstances, that the costs of the first litigation should be paid before a second litigation upon substantially the same cause of action would be permitted. Sprague v. Bartholdi Hotel Co., 68 Hun, 555 , 22 N. Y. Supp. 1090 ; Spaulding v. American Wood Board Co., 58 App. Div. 314 , 68 N. Y. Supp. 945 ; Ingrosso v. Baltimore & Ohio R. R. Co., 105 App. Div. 495 , 94 N. Y. Supp. 177 ; Muratore v. Pirkl, 109 App. Div. 146 , 95 N. Y. Supp. 855 ; Behrens v. Sturges, 138 App. Div. 537 , 123 N. Y. Supp. 224 .

The order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.

Cases cited

Muratore v. Pirkl 109 App. Div. 146 N.Y. App. Div. 1905-11-17 p. 437