Bolton v. Corse ( 1881 )

By the Court.—Sedgwick, Ch. J.

The present action is in ejectment. It would seem that the issue would be determined by an adjudication as to the validity of a deed made by one as executor. A former action had been brought by the present plain tiffs, to set aside that deed as a cloud upon title. The defendants in it were other persons than the present defendants. In that action the defendants had judgment and for costs. In this action the defendants claim under conveyances made since the judgment in the former action. They seem to derive their title from the deed which the first action was brought to cancel. On motion by defendants, proceedings in this action were stayed until the costs of the first action should be paid.

There is a precedent which, I think, required a denial of the motion below. In Simpson v. Brewster (9 Paige, 244), it appeared that the plaintiff had formerly brought a bill against the defendant for the same cause. That bill had been dismissed upon payment of costs. The costs, in fact, had not been paid. The defendant made a motion to stay proceedings, until plaintiff paid the costs. Chancellor W alworth held, that as the defendant had made an assignment of the costs, he had no interest in the application, which was denied.

The same fact appears here. The defendants have no interest in enforcing payment of costs to the defendants of the first action.

Order appealed from is reversed, and the motion is denied, and stay vacated with $10 costs to appellants, and disbursements to be taxed.

Speir and Freedman, JJ., concurred.