
    Haboneh Engineering Construction and Building Corporation, Respondent, v. Merchants Restaurant Corporation, Appellant.
    Supreme Court, Appellate Term, First Department,
    April 24, 1929.
    
      
      Nathaniel Goldstein, for the appellant.
    
      Alexander S. Winett, for the respondent.
   Per Curiam.

The subject-matter of both actions was the contractual relation between the parties which grew out of one building contract. Wliile the second complaint proceeded on a different theory from the first, it sought to recover practically the same items of damage. The rule is that “ so long as the facts in both actions were substantially the same, the last action should be stayed until the costs were paid.” (Mintz v. Goodman, 186 N. Y. Supp. 214.) These actions are substantially the same.

The order is reversed, with ten dollars costs and disbursements, and motion granted.

All concur; present, Bijur, Callahan and Peters, JJ.  