Faulkner v. Cody — 59 N.Y.S. 807

Majority

p. 807

(28 Misc. Rep. 66.)

FAULKNER v. CODY.

(Supreme Court, Special Term, Oneida County.

June, 1899.)

Headnote

Costs in Pbbvious Suit.

A motion by defendant to restrain prosecution of a suit until the costs are paid in a previous suit by plaintiff against defendant, in which the complaint was dismissed, will not be granted, where no answer or affidavit of merits has been filed.

An action by John J. Faulkner against Francis A. Cody. Motion by defendant to restrain prosecution of the action until costs in a preceding action are paid by plaintiff.

Denied.

S. M. Lindsley, for the motion.

J. L Sayles, opposed.

I think this motion should be granted, if made upon proper and sufficient papers. The subject-matter of the present suit was undoubtedly included in, and covered by, the allegations of the complaint in the prior action, although somewhat different relief is sought herein. Sufficient papers, however, are not presented upon this motion. Ho answer has been served in the present case, and there is no affidavit of merits or other affidavit indicating that defendant has a meritorious defense. Inasmuch as the granting of an application like this is more or less one of discretion, some evidence should be presented of the merits of defendant’s position. This motion, therefore, is denied, with $10 costs to plaintiff to abide event, but without prejudice to the right of defendant to renew the motion, if he is so advised.

Motion denied, with $10 costs to abide event, but without prejudice to defendant to renew.