
    Cochran Cotton Seed Oil Company, Resp’t, v. Julius A. Kugelman, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 2,1894)
    
    1. Former adjudication—Unpaid costs.
    An action cannot be maintained in a district court, where a prior action for the same subject matter has been discontinued with costs, which remain unpaid. -
    3. Same—Proof of non-payment.
    Transcript from docket under the seal of the district court, and the certificate of its clerk that the costs have not been marked paid on the docket, are insufficient proof of non-payment.
    
      Appeal from, a judgment of the district court in the city of New York for the seventh judicial district, rendered by the justice •without a jury in favor of the plaintiff. Action for goods sold and delivered.
    
      Campbell & Murphy, for app’lt; Robert B. Honeyman, for resp’t.
   Bischoff, J.

That the justice properly rendered judgment for the plaintiff upon the merits of the cause of action is unquestionable, and this the appellant seems to admit; the argument for a reversal of the judgment being confined to the defense, as interposed, of the pendency of another action alone. The evidence received upon the trial, in the form of testimony and of the parties’ letters relating to the transaction, abundantly sustains the finding that the goods in question were retained by the defendant and resold by him under an agreement that the plaintiff should credit him upon the purchase price due plaintiff for the goods, with any loss occurring upon such re-sale. There is no contradiction as to the amounts to be charged and credited, and no evidence appears which would justify any recovery by the defendant for storage, insurance, &c., and, moreover, no counterclaim was pleaded. There are no exceptions upon the record. As to the defense of another action pending, it was admitted on the trial that an action between the same parties for the same cause had been commenced in the second district court, and that the same ha.d been discontinued. The defendant, however, claims that such action was discontinued by the plaintiff, after appearance by defendant, “with $7 costs,” and claiming that such costs have not been paid, contends that the present action was prematurely brought, under the ruling in Flewelling v. Brandon, 4 Daly, 333. The decision in that case was based upon the provisions of § 45 of chap. 344 of the Laws of 1857 and § 3 of chap. 484 of the Laws of 1862, and, by virtue of the substantial re-enactment of such provisions by §§ 1382 and 1426 of the Consolidation Act (Laws 1882, ch. 410), its application would extend to the existing practice. It was there held that an action could not be maintained in a district court where a prior action for the same subject matter had been discontinued with costs, and such costs had not been paid. It appears, however, from the opinion in that case that the non-payment of such costs was admitted upon the record whereas here we find no trace of any such admission, and it becomes a question whether the defendant has sufficiently proven the defense relied upon. No testimony was given upon this point, and the only evidence appears in the form of a transcript from the docket, under the seal of the second district court, and ■a certificate of the clerk of such court that the $7 costs have not been marked as paid upon such docket. This proof cannot be considered as sufficient to support the affirmative defense in question. The transcript and certificate at best are evidence only of the facts so certified, viz: that no statement of payment was endorsed upon the docket, Consolidation Act, § 1410, and this is by no means sufficient evidence that the costs have not been paid nor •a tender made. No mention of any duty resting upon the clerk to make such an entry upon the docket in the event of payment to the party, is found in the enumeration of such clerk’s duties, as set forth in § 1409 of the Consolidation Act, and it is only of the entries made as so prescribed that the transcript from the docket is evidence. TLie certificate that an entry, which is not apparently the duty of the clerk to make, was not actually made-cannot avail to prove the non-existence of a fact which would justify such entry. No testimony as to non-payment having been adduced, nor any motion made upon the trial, which could in any way call for evidence from the plaintiff as to payment or tender of these costs, the justice properly determined adversely to-the defendant upon this defense. The judgment should be affirmed with costs.

Giegerich, J.

I concur in the reasoning and conclusion reached by Judge Bisohofe upon this appeal. In my opinion, it was incumbent upon the defendant to prove that the costs imposed upon the discontinuance of the former action had not been paid. See Tracy v. Tracy, 59 Hun, 1; 35 St. Rep. 167; Lent v. N. Y. & Mass. R. R. Co., 130 N. Y. 504; 42 St. Rep. 592. In the absence of such proof the judgment should be affirmed.  