Majority
p. 414Patrick Farrell, as Administrator, etc., Resp'ts, v. New York Juvenile Asylum, App'lt. (Supreme Court, Appellate Division, First Dept., Filed March 20, 1896.)
Headnote
Costs—Former action.Where plaintiff fails to pay the costs awarded upon opening a default and judgment dismissing the complaint is entered, with costs, a new action for the same cause will he stayed until the payment of the costs in the former action.
Appeal from an order denying a motion for a stay of proceedings until plaintiff shall pay the costs of a former action.
Theron G. Strong, for app’lt; Albert D. Haff, for resp’t.
We think this motion should have been granted. The plaintiff, as administrator, commenced an action in.
p. 415
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 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 superior court as a condition of opening the default, it would be opposed to orderly practice to allow a party to a litigation Ihus to trifle with the orders of the court, and, by allowing an action to drop, and commencing a new action, to obtain tlie 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.