Fransioli v. Boorman — 84 N.Y.S. 128

Majority

p. 128

FRANSIOLI v. BOORMAN.

(Supreme Court, Appellate Term.

June 22, 1903.)

Headnote

1. Dismissal—New Action—Costs of Previous Suit.

Where a new suit for the" same cause of action is instituted against the same parties after the dismissal of a former action, a motion to stay the action until the costs in the former are paid will he granted.

¶ 1. See Costs, vol. 13, Cent. Dig. § 1049.

Appeal from City Court of New York.

Action by Augustus C. Fransioli against Thomas FI. Boorman. From an order staying the action until the costs in a previous action wrere paid, plaintiff appeals. Affirmed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

p. 129

A. C. Fransioli, in pro. per.

A. L. Squiers, for respondent.

In December last, the appellant brought an action in the City Court against the respondents to recover the balance due on a judgment obtained by him against them. The action was at issue and on the trial calendar March 5th last, on which day, the appellant being in default, the complaint was dismissed, with $73.20 costs. Instead of moving to open his default, the appellant commenced another action against the same parties defendant for the same cause of action stated in the complaint in the first suit. Thereupon the respondents moved for a stay of the second action until the costs in the first one should be paid. The court granted this motion, and from the order staying the appellant’s proceedings until the costs were paid, this appeal was taken. The obvious and ordinary mode of obtaining relief in the circumstances was for the appellant to move to open the default, and such a motion would probably have been granted, but he chose to bring a new suit for the same cause of action, apparently in the expectation of avoiding the payment of any costs whatever. The decision of the court below was strictly in accordance with established practice. Hill v. Grant, 2 Thomp. & C. 467; Bates v. Dickerson (Sup.) 12 N. Y. Supp. 773 ; Sprague v. Bartholdi, 68 Hun, 555 , 22 N. Y. Supp. 1090 ; Farrell v. Juvenile Asylum, 2 App. Div. 496 , 37 N. Y. Supp. 1118 ; Spaulding v. American, etc., 58 App. Div. 314 , 68 N. Y. Supp. 945 .

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