Opinion
June Term, 1901.
Barnwell Rhett Heyward, for the appellant.
Lewis E. Carr, for the respondent.
Section 1209 of the Code of Civil Procedure provides: "A final judgment, dismissing the complaint, either before or after a trial, rendered in an action hereafter commenced, does not prevent a new action for the same cause of action, unless it expressly declares, or it appears by the judgment-roll, that it is rendered upon the merits."
A plea of former adjudication is fatally defective unless it alleges that the former judgment or decree was on the merits. (9 Ency. Pl. Pr. 619-621; 2 Van Fleet Form. Adj. 1327.)
The fact that costs of a former action between the same parties and for the same subject-matter have not been paid, does not deprive the court of jurisdiction when set in motion by the party resting under a stay. The only effect is to render the proceedings irregular, and when brought to the attention of the court the party violating the stay will be dealt with as may be proper. ( Wessels v. Boettcher, 142 N.Y. 212.)
Apart from the provision of the Code of Civil Procedure (§ 779) relating to a stay against a party required to pay costs of a motion or any other sum of money directed by an order to be paid, the court has power in regard thereto, by reason of its equitable cognizance over suitors, to prevent a multiplicity of actions and harassing and oppressive litigation. Having the power, it is for the court to determine the propriety of its exercise in a given case. ( Barton v. Speis, 73 N.Y. 133.)
The fact that the costs of a former action had not been paid is not a defense, but can be brought to the attention of the court on a motion for an order staying proceedings in the action.
All concurred.
Order and interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with usual leave to defendant to amend answer on payment of costs.