Opinion
November, 1910.
John R. McMullen (Rudolph Dugan, of counsel), for appellant.
James F. Brady (Bertrand L. Pettigrew, of counsel), for respondent.
The plaintiff appeals from an order of the City Court staying him from proceeding with an action pending in the City Court until the plaintiff pays the costs awarded to the defendant against the plaintiff in an action previously brought in the Municipal Court. The former action, which was brought in the Municipal Court, was based upon a cause of action identical with that alleged in the complaint in the City Court action.
In the Municipal Court action the complaint was dismissed with costs. The costs awarded have not been paid. Upon this appeal the appellant denies the authority of the City Court to stay proceedings until the costs in the prior action are paid.
The general rule has long been settled that a court of record may stay proceedings in its own court until the costs of a previous action are paid. Cuyler v. Vanderwerk, 1 Johns. Cas. 247; Perkins v. Hinman, 19 Johns. 237; Youle v. Brotherton, 10 id. 364.
This rule was recognized as applicable to the Marine Court of the city of New York. McAdam's Marine Court Practice (2d ed.), 213, 214.
The rule prescribed by section 779 of the Code of Civil Procedure, where the costs of a motion are directed to be paid by an order, applies to the payment of the costs of an action, where another action is commenced between the same parties to recover upon the same cause of action. Wilner v. Ind. Order Ahawas Israel, 122 A.D. 615.
Section 779 of the Code is made applicable to the City Court by subdivisions 4 and 6 of section 3347 of the Code.
It follows that the order appealed from was within the jurisdiction of the court below and that in making such an order the discretion of the court was properly exercised.
Order affirmed, with ten dollars costs and disbursements.
PAGE and BIJUR, JJ., concur.
Order affirmed.