
    Harriet Parks Duport (Anderson) and Grace Margaret Parks, Plaintiffs, v. First National Bank of Glens Falls, N. Y., and The Emerson National Bank of Warrensburg, as Substituted Trustee under the Will of George H. Parks, Deceased, for the Harriet Parks Duport and Grace Margaret Parks Trust Funds, Defendants. First National Bank of Glens Falls, N. Y., Appellant; Harriet Parks Deport and Grace Margaret Parks, Respondents.
   Appeal by the First National Bank of Glens Falls from an order denying, with costs, the bank’s motion for a stay of proceedings herein for failure to pay prior costs awarded to the bank. In an action by the appellant, the First National Bank of Glens Falls, against Grace M. Parks and the Emerson National Bank of Warrens-burg, a motion was made by Harriet Parks Duport and Grace M. Parks, the present respondents, for leave to intervene and become parties defendant and serve an answer. The motion was denied, and on their appeal to this court, this court affirmed the order [245 App. Div. 776], The affirmance was without prejudice to the making of a new application by the answer, which raises only the unlitigated issues. Thereafter the respondents appealed to the Court of Appeals. The appeal was dismissed on the ground that the order was not a final order in a special proceeding [270 N. Y. 506]. The dismissal was after argument and carried full costs. Thereafter these respondents began this action against these appellants for the same relief as asked for in their prior motion to intervene, which had been denied, but without paying the costs of their prior unsuccessful motions and appeals. The motion of the bank, which was denied by Mr. Justice Brewster without an opinion, is the subject of the appeal here. The respondents, instead of availing themselves of the privilege of making new application to intervene and litigate the issues that had not been litigated, brought this new action. This does not relieve them from the obligation of paying the costs incurred in the other proceeding. There is no justice in permitting them to evade the payment of these costs by abandoning their former motion. Order reversed, on the law and facts, with ten dollars costs and disbursements, and motion for stay granted, with ten dollars costs. Hill, P. J., Rhodes, McNamee, Crapser and Hefliernan, JJ., concur.  