Frank Conlon, Respondent, v. National Fireproofing Company, Appellant, Impleaded with John Wanamaker and A. T. Stewart Realty Company, Defendants

Frank Conlon, Respondent, v. National Fireproofing Company, Appellant, Impleaded with John Wanamaker and A. T. Stewart Realty Company, Defendants. First Department, October 23, 1908 Action— defenses—prior action pending—effect of dismissal of prior action — stay — payment of costs. Where the prior of two actions to recover upon the same cause of action has been dismissed for failure to prosecute, the defense of another action pending is no longer available. Where the first of two actions brought on. the same cause has been dismissed, with costs, the plaintiff's proceedings in the second action will be -stayed until the costs are paid whether the second action was brought prior or subsequent to the award of costs in the first action. Appeal by the defendant, the Rational Fireproofing Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of May, 1908, as amended by an order entered in said clerk’s office on the 25th day of June, 1908, denying the said defendant’s motion for a stay of proceedings. George W. Smyth, for the appellant. Edward Mandel, for the respondent. [MAJORITY — Ingraham, J.:] Ingraham, J.: The plaintiff brought two actions to recover for personal injuriés upon the same cause of action, in both of which issue was duly joined and the cases placed upon the calendar. Upon the making up of a new calendar plaintiff failed to file a new note- of issue in the first action commenced, whereupon the defendant Rational Fireproofing Company moved to dismiss the complaint therein. This motion was granted and an order entered dismissing the complaint in the first action and judgment was entered against the plaintiff for the costs. Subsequently the defendant Rational'Fireproofing Company made a motion for a stay of proceedings in the second action until the payment of the costs upon the dismissal of the first action, and that motion having been denied the defendant appeals. The pendency of the first action would have been a defense to this action, based as it was upon the same cause of action. The first action having been dismissed for want of prosecution that invalidated what but for such dismissal would have been a defense. It must be improper to allow a second action for the same cause of •action to be commenced when one action was pending and immediately after the commencement of the second action have the first dismissed, and thus avoid the necessity of paying costs of the first action as a privilege of continuing the second. This would allow a method of evading the very salutary rule which prevents a number of actions for the same cause of action when the controversy could be. determined in the first action commenced. It is quite essential that this rule should be strengthened rather than relaxed. - The case of Barton v. Speis (73 N. Y. 133) clearly recognizes the existence of the power in this court to compel the payment of these costs. In Singer v. Garlick (123 App. Div. 282) we held that where a plaintiff is unsuccessful in an action and costs are therein awarded to the defendant, another action to recover upon the same cause of action cannot be maintained until the costs are paid. It is entirely immaterial whether the second action was brought prior or subsequent to the award of costs in the first action. It is the bringing of two actions to recover for the same ■ cause of action that is sought to be prevented. It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Patterson, P. J:, Laughlin, Clarke and Scott, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.