Dare v. Murphy , 18 Abb. N. Cas. 466 ( 1887 )

Andrews, J.

There is no absolute right in a defendant to demand the judgment of the court forbidding the prosecution of a second suit until the costs of a former action are paid. It is in equity depending generally upon the circumstances of each particular case, and addressed very much to the sound discretion of the judge to whom the application is made (McMahon v. Mutual Benefit Life Ins. Co., 12 Abb. Pr. 28). The cases in which orders have been made staying proceedings in an action until the costs of a former action have been paid, have usually been those in which the former action was disposed of by a trial upon the merits.

The plaintiff in the present action swears that the former action brought by him in the marine court was dismissed for want of prosecution through the neglect of his attorney and without his knowledge. Moreover, while the cause of action now set up in the complaint includes the cause of action set up in the complaint in the marine court, there may be some question whether the issue can be regarded as identical within the decisions in the cases where proceedings have been stayed in an action until the costs of a former action have been paid.

The plaintiff and his attorney insist that the present action is brought in good faith, and, upon the whole, 1 think it a proper exercise of discretion to deny the motion, with $10 costs to abide the event.