Opinion
Argued February 22, 1878
Decided March 19, 1878
F.M. Evarts, for appellant.
W.H. Cutler, for respondent.
We have no doubt of the power of the Supreme Court to make the order appealed from requiring the plaintiff to pay the costs accrued in the former action by Barton and Parkhouse. That action was for the same cause of action as this. The plaintiff purchased the obligation subject to existing equities between the parties, and she has no better position than her assignor, and he had no better position than the original plaintiffs. This power is one of equitable cognizance over suitors to prevent a multiplicity of actions, and harassing and oppressive litigation. ( Richardson v. White, 27 How., 155, and cases there cited; Sandford v. Chase, 3 Cow., 381.) Having the power, it is for that court to determine the propriety of its exercise in a given case. We think it was properly exercised in this case. The plaintiff, instead of availing herself of the privilege of amending the complaint in the original action, as she might have done upon payment of the costs of the demurrer, brought a new action. This does not relieve her from the obligation to pay the costs. The fact that the former action is still nominally pending and undetermined is not decisive against this motion. The costs of the demurrer are fixed, and payment might be inforced by process. There is no justice in permitting her to evade the payment of these costs by abandoning the former action. She derived her title through the former plaintiffs, and is in privity with them, and took the obligation cum onere. It does not matter that in the former action the defendant's husband was joined with her as maker of the note. The plaintiffs had the privilege of amending the complaint, and might have severed the action, and continued it against each or either, and the defendant is entitled to the same relief as if she had been the sole party in the former action.
The order should be affirmed, with costs.
All concur, except EARL, J., absent.
Order affirmed.