Wolfe v. Blue Ribbon Auto & Carriage Co. — 153 N.Y.S. 1006

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p. 1006

WOLFE v. BLUE RIBBON AUTO & CARRIAGE CO.

(No. 7491.)

(Supreme Court, Appellate Division, First Department.

June 18, 1915.)

Headnote

1. Action @^>69—Stay of Proceedings—Other Action Pending.

Where one who had, while residing in another state, been nonsuited in two actions against the same defendant in that state, thereafter brought another action for the same cause in New York, the proceedings therein will not be stayed because of an injunction issued by the courts of the other state against the further prosecution of any action, where plaintiff claimed that he was now a resident of New York, and that the injunction had never been served on him in the other state, since those two issues of fact ought not to be decided on affidavit, but can be raised by the answer as a bar to the action and determined at the trial.

[Ed. Note.—For other cases, see Action, Cent. Dig. §§ 744^-751; Dec. Dig. <S=>69.]

<§=oFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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2. Costs <@=»277—Remedies fob Collection—Stay of Subsequent Peoceedings.

A subsequent action for the same cause against the same defendant will be stayed until the costs awarded against the plaintiff in the prior action are paid, though the prior action was brought in another state.

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

<§ns>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Appeal from Special Term, New York County.

Action by John Wolfe against the Blue Ribbon Auto & Carriage Company. From an order denying defendant’s motion to stay further proceedings in the action, the defendant appeals.

Reversed, and motion granted, until the costs in a former action are paid.

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

William L. O’Brion, of New York City, for appellant.

Rufus M. Overlander, of New York City, for respondent.

The plaintiff, then a resident of Connecticut, sued the defendant, a Connecticut corporation, in two successive actions in that state, fdr an injury suffered in Connecticut. He was nonsuited in both actions, and a judgment was entered against him for costs, which have not been paid. After he had been nonsuited in his second action in Connecticut, plaintiff came into this state, and, as he claims, became a •resident here, and thereupon commenced this action for the same cause of action upon which he had so unsuccessfully sued in Connecticut. As soon as this action had been commenced, defendant began an action against plaintiff in the Supreme Court of the state of Connecticut, and obtained an injunction restraining plaintiff herein from commencing any further action against defendant upon said claim. This injunction, it is said, was served upon plaintiff in the state of Connecticut, although he denies that it was so served. Defendant now moves that all proceedings on the part of plaintiff in this action be stayed until the injunction order issued in Connecticut be vacated or set aside, and until plaintiff pays to defendant the costs awarded in the action in Connecticut. From an order denying this motion defendant appeals.

[1] So far as concerns that branch of the motion which asks that plaintiff’s proceedings be stayed until the Connecticut injunction be vacated or set aside, we think that under the circumstances the denial was justified. There are two questions of fact involved which we should not undertake to decide upon the affidavits, to wit, whether plaintiff was a resident of this state or of Connecticut when he began this action and the injunction order was served in Connecticut, and whether in fact that injunction order was ever served on him. If plaintiff was a nonresident of this state when he commenced this action, that fact can be pleaded by answer, as can the effect of the Connecticut injunction order, if it be in law a bar to plaintiff’s prosecution of the present action.

[2] We think, however, that the motion should have been granted to the extent of staying further proceedings until the payment of the costs incurred in the Connecticut action. It has been the practice of

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the courts for many years to require a plaintiff, who has unsuccessfully sued upon a cause of action and incurred a bill of costs, to pay those costs before prosecuting a second suit against the same defendant upon the same cause of action. This is to afford a successful defendant such indemnity against further annoyance for the same cause as the costs of the former action will furnish. Ingrosso v. Balt. & Ohio R. R. Co., 105 App. Div. 494 , 94 N. Y. Supp. 177 . The application of the rule is not confined to actions commenced in the same court (Perkins v. Hinman, 19 Johns. 237 ; Jackson v. Carpenter, 3 Cow. 22 ), and is supported by the same reason where the successive actions are brought in different states as where they are brought in different courts in the same state.

The order appealed from must be reversed, and the motion granted, to the extent above indicated, with $10 costs and disbursements to appellant. Settle order on notice.

MCLAUGHLIN, LAUGHLIN, and CLARKE, JJ., concur. IN-GRAHAM, P. J., concurs in result.

Cases cited

Perkins v. Hinman 19 Johns. 237 N.Y. Sup. Ct. p. 1008