Doyle v. Recorder Printing Co.

Headnote

Staying proceedings until costs of a former action are paid — how the identity of the two actions may he established.

Appeal from an order of the Oswego Special' Term staying the plaintiff’s proceedings in this action, until the defendant’s costs in a former action, commenced by the same plaintiff, are paid.

The former action having been dismissed before service of a complaint therein a cpiestion arose upon the motion, which resulted in the order from which this appeal is taken, whether the two suits were brought upon the same identical cause of action. The complaint in the present action is for an alleged libel published in June, 1882. The first action was begun subsequently to such publication, and the plaintiff .claims in the affidavits read by her in opposition to the motion that such suit was not brought to recover damages for the alleged libel, but was brought to procure-an injunction restraining the defendant from libelling the plaintiff.

The court at General Term said: “ The judge at Special Term seems to have believed the declarations of the plaintiff’s attorney on that point, as sworn to in the moving affidavits, to the effect that the two actions were for the same cause, rather than the averments in the opposing affidavits as to the cause of action in the first suit, and we see no reason to disturb his conclusion in that respect. The appellant’s counsel has called our attention to the recent case of Phelps v. Gee (29 Iiun, 202). That case does not aid the appellant for the reason that the only question decided by it does not appear to have been raised in the present case at Special Term. The appeal papers do not show that any objection was made to the nature of the evidence by which the defendant sought to show the cause of action for which the first suit was brought, and the objection éannot be raised for the first time on appeal. The claim of the plaintiff’s attorney that the motion should have been denied for the reason that no demand had been made for the payment of tlie costs in the former action, and no execution had been issued to

collect the'samé, and that the defendant was guilty of laches in not making the motion at the first opportunity, cannot be maintained.”