
    *Israel Post, Jr. agt. Obadiah S. Haight.
    Where a defendant obtains a judgment of non pros, in the common pleas, which remains unpaid, and the plaintiff previous thereto commences a suit in this court, for the same .cause of action: on motion, the plaintiff’s proceedings in this court will be stayed until the amount of costs for which judgment of non pros was entered is paid. The plaintiff cannot set up the irregularity of the judgment in answer to the motion.
    
      December Term, 1845.
    Motion by defendant for a stay of proceedings in this cause until costs of judgment of non pros in common pleas should be paid.
    The defendant obtained judgment of nonpros against the plaintiff in the court of common pleas of Saratoga county, which was perfected in October last. After the suit was commenced in the court of common pleas, the plaintiff commenced this suit for the same cause of action.
    
      The rule entered in the common pleas, granting judgment of non pros, was conditional; that the plaintiff pay the costs therein up to that time, within ten days after demand of a bill thereof taxed on notice ; the costs were taxed on notice and opposed by plaintiff's attorney; subsequently the defendant’s attorney entered the judgment of non pros, but afterwards vacated it and gave plaintiff’s attorney notice thereof, and also notice to plaintiff’s attorney to comply with the conditions of the rule for judgment of non pros ; that notice was dated October 15, 1845, and on the 27th October, 1845, defendant’s attorney entered judgment of non pros which he alleged was unpaid and remained due from plaintiff. The plaintiff’s counsel insisted and stated from the papers that no demand of the costs for judgment of non pros had ever been made of the plaintiff, and that the defendant’s judgment was irregularly entered, the rule for judgment of non pros not having been complied with by him
    P. Cagger, defendant's counsel.
    
    A. Haight, defendant?s attorney.
    
    D. Wright, plaintiff's counsel.
    
    W. B. Litch, plaintiff's attorney.
    
   Jewett, Justice.

The plaintiff must first get rid of the judgment in another form, if it is irregular; the irregularity cannot be set up in answer to this motion.

Motion granted with $10 costs.  