Davis v. Duffie — 12 N.Y. Super. Ct. 688

Majority

p. 688

Davis v. Duffie, et al.

Headnote

The plaintiff had formerly brought an action, in this court, for legal relief against some of the defendants in this action. His complaint was dismissed with costs, but without prejudice to an action for equitable relief.

Without having paid the costs of the former action he brought this one to obtain equitable relief.

Held, that the court would not stay the proceedings in this action, as a matter of course, until the costs of the former one were paid.

At Special Term,

October, 1856.

held as above stated. Under the former practice a court of law was alone competent to grant the relief sought in the action first brought. A court of equity would not stay the proceedings in a suit brought in it, until the costs of a previous action at law, in which the plaintiff was defeated, were paid, unless the second suit appeared to be vexatious. A court of law was governed by the same rule as to staying proceedings, until the costs of a former suit in chancery were paid. Unless the two suits had been in the same court, or in courts of the same nature, and proceeding on the same principle and in the same mode, the proceedings in the second action would not be staid until the costs of the former one were paid, (2 J. Ch. R. 461; 19 J. R. 196; 7 Paige, 53.) Perkins v. Hinman, (19 J. R. 237,) was a case in which both actions were in courts of law, although not in the same court. The motion, by the defendants, to stay proceedings in this action, until the costs of the first action are paid, must be denied. (S.