
    John E. Simms, Respondent, v. Carter & Weekes Stevedoring Company, Appellant.
    First Department,
    November 5, 1915.
    Stay — failure to pay costs of prior action.
    Non-payment of c'osts in an action entitles the defendant in whose favor they are awarded to stay all proceedings in a subsequent action brought by the same plaintiff upon the same cause of action, unless there be special facts and circumstances which would make the stay unjust and inequitable.
    Hence, a defendant in an action in the City Court who has recovered a judgment for costs upon the plaintiff’s failure to prosecute, is entitled to a stay upon the commencement by the plaintiff of a subsequent action for the same cause but for a larger amount, in the Supreme Court, notwithstanding the fact that the defendant failed to serve the plaintiff with a notice of trial in the City Court action, although the cause was at issue and on the calendar.
    
      Appeal by the defendant, Carter & Weekes Stevedoring 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 28th day of June, 1915, denying defendant’s motion for a stay of proceedings.
    
      James J. Mahoney, for the appellant.
    
      Julian J. Raphael, for the respondent.
   McLaughlin, J.:

In October, 1912, the plaintiff brought an action in the City Court of the City of New York to recover $5,000 damages for personal injuries alleged to have been sustained through the negligence of the defendant. The action was subsequently dismissed for plaintiff’s failure to prosecute, and, on June 1, 1915, judgment was entered against the plaintiff for $48.14 costs. On June 15, 1915, the plaintiff commenced this action in the Supreme Court to recover $10,000 damages upon the same cause of action upon which he had previously sought to recover in the City Court. The defendant thereupon moved for a stay of all proceedings in this action until the costs recovered in the City Court action had been paid. The motion was denied and defendant appeals.

It has repeatedly been held that non-payment of costs in an action entitles the defendant in whose favor they are awarded to stay all proceedings in a subsequent, action, brought by the same plaintiff upon the same cause of action. (Schwartz v. Minsker Realty Co., 166 App. Div. 681; Behrens v. Sturges, 138 id. 537; Hempsted v. White Sewing Machine Co., 134 id. 575; Singer v. Carlick, 123 id. 282.) This is the settled rule and is followed unless there be, in a given case, special facts and circumstances which would make its application unjust and inequitable. No such facts or circumstances are here set forth. Indeed, the only fact set forth in the affidavit in opposition to the motion, as a reason why the stay should not be granted, is that the defendant failed to serve plaintiff with a notice of trial in the action brought in the City Court, although the cause was at issue and on the calendar. But that did not constitute an excuse why the plaintiff in that action should not have tried the cause. He could have served a notice of trial and had the cause tried, irrespective of whether or not the defendant served a notice of trial.

The judgment of the City Court determined that the defendant was entitled to the costs of. that action. Those costs have not been paid. The judgment still remains in force. The plaintiff here asks for a larger recovery than he did in the City Court, but that fact in no way changes the cause of action. It is precisely the same in each action.

The order appealed from, therefore, should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Ingraham, P. ■ J., Laughlin, Clarke and Scott, JJ., concurred.

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