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Farrell v. New York Juvenile Asylum

37 N.Y.S. 1118 Court N.Y. App. Div. Decision date 1896-03-20 English

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p. 1118
FARRELL v. NEW YORK JUVENILE ASYLUM.
(Supreme Court, Appellate Division, First Department.
March 20, 1896.)

Headnote

Costs—Op Former Action—Commencement op Second Action.
Plaintiff’s motion to open a default suffered by him was granted on condition of his paying the costs. Failing to make such payment, the complaint was dismissed, with costs. Held, that proceedings in a subsequent action for the same cause of action should be stayed till payment of the costs of the first action.
Appeal from special term, New York county.
Action by Patrick Farrell, as administrator, against the New York Juvenile Asylum. From an order denying a motion for stay of proceedings till plaintiff should pay the costs of a former action, defendant appeals. Reversed.
Argued before VAN' BRUNT, P. J., and WILLIAMS, PATTERSON, O’BRIEN, and INGRAHAM, JJ.
Theron G. Strong, for appellant.
Albert D. Haff, for respondent.

We think this motion should have been granted. The plaintiff, as administrator, commenced an action in the superior court to recover for the death of the plaintiff’s intestate, caused by the negligence of the defendant. When that action came on for trial, the plaintiff suffered a default, and the complaint was dismissed. Subsequently, plaintiff moved to open the default, and that motion was granted, upon payment of the taxable costs of the action. The plaintiff failed to pay such costs, and judgment was entered dismissing the complaint, with costs. Subsequently, plaintiff commenced a new action in the supreme court upon the same cause of action, the complaint being substantially the same as the complaint in the action in the superior court. It thus being perfectly apparent that the new action was commenced for the purpose of evading a compliance with the terms imposed by the su

p. 1119
perior court as a condition of opening the default, it would be opposed to orderly practice to allow a party to a litigation thus to trifle with the orders of the court, and, by allowing an action to drop, and commencing a new action, to obtain the same relief, without complying with the terms imposed for relief from the consequence of a neglect to prosecute his action.

The order should therefore be reversed, with $10 costs and disbursements, and the motion granted.