
    Benjamin Lass, Respondent, v. Volk Housewrecking Company, Appellant.
    (Supreme Court, Appellate Term,
    May, 1911.)
    Costs — Payment and enforcement thereof — Staying further proceedings on action till costs paid — Staying second action till costs of former paid—Same cause of action..
    An action to recover damages for personal injuries under the ' Employers’ Liability Act should be stayed until the payment of costs awarded against the plaintiff in a previous action to recover damages for the same injuries at common law.
    Appeal by the defendant from an order of .(he City Court oif the ci-ty of Hew York, denying a motion to ist-ay the plaintiff from proceeding with the trial of 'this action, upon the ground of the non-payment of a judgment for cost's of a previous action instituted by him.
    
      James B. Henney (Henry Ginnane, of counsel), for appellant.
    Morris Leibowitz, for respondent.
   Per Curiam.

The respondent’s attorney, in his affidavit opposing the motion for a stay, admite that he commenced an ■action against the defendant on July 7, 1910, under the common law, to recover damages for personal injuries; that such action was discontinued, and that, on July 26, 1910, he began another action for the plaintiff herein against the defendant under the Employers’ Liability Act for damages for personal injuries, both actions arising out of the siame transaction.

The respondent urges that, as the causes of action are not identical, the order appealed from should be affirmed.

It has been held that the Employers’ Liability Act gives a new cause of action. Uss v. Crane Co., 138 App. Div. 256. It is not essential, however, that there should be a complete identity of the subject-matter of both actions in order to entitle a party to a stay. Spaulding v. Am. Wood Board Co., 58 App. Div. 315; Sprague v. Bartholdi Hotel Co., 68 Hun, 565.

The plaintiff having instituted and abandoned one suit upon substantially the same cause of action, the defendant should not be subjected to another action upon the same facts without receiving the costs of the former action.

Order reversed, with ten dollars costs and disbursements, and motion granted.

Present: Seabury, Lehman and Gerard, JJ.

Ordered reversed.  