
    Stefano Ingrosso, Respondent, v. The Baltimore and Ohio Railroad Company, Appellant.
    
      Stay, became of the non-payment of costs of a former action for the same cause in the City Court of the city of New York.
    
    Where the complaint in an action brought in the City Court of the city of New York is dismissed, with costs, solely through the fault of the plaintiff himself and not through the fault of his attorney, the non-payment of such costs operates as a stay of proceedings in a subsequent action brought by the plaintiff in the Supreme Court to recover upon the same cause of action.
    Appeal by the defendant, The Baltimore and Ohio Railroad Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 26th day of April, 1905, denying the defendant’s motion to stay the prosecution of the above-entitled action until the payment by the plaintiff of costs in a former action.
    
      Richard Reid Rogers, for the appellant.
    
      Joseph A. Shay, for the respondent.
   McLaughlin, J. :

The plaintiff brought an action in the City Court of the city of Hew York to recover damages for personal injuries alleged to have been sustained by reason of defendant’s negligence. The action subsequently came on for trial on defendant’s notice, and the complaint was dismissed and judgment entered for the defendant against the plaintiff for the sum of sixty-eight dollars and thirty-two cents costs. The plaintiff and his attorney were present in court when the complaint was dismissed, but neglected and refused to proceed with the trial. Thereafter the plaintiff moved to open the default,^which motion was granted upon condition that he should, within five days thereafter, pay thirty-five dollars “ trial costs.” He neglected to pay within the time specified and asked for an extension, which was granted, and he also neglected to pay the costs within the extended time, but instead brought this, actioi in the Supreme Court to recover upon the same cause of action Thereupon the defendant moved to stay the prosecution of this action until the costs of the prior action had been paid. The motion was denied and the defendant has appealed.

I think the order should be reversed. Where the costs of a motion in an action are directed to he paid, all proceedings on the p.art of the party required to pay the same — except to review or vacate the order — are stayed without further direction of the court until the payment thereof. (Code Civ. Proc. § 779.) The same rule should be applied to the payment of costs in an action where another action is commenced between the same parties to recover upon the same cause of action. Indeed, such rule has been applied in numerous cases. (Cuyler v. Vanderwerle, 1 Johns. Cas. 247; Perkins v. Hinman, 19 Johns. 237; Edwards v. Ninth, Ave. R. R. Co., 22 How. Pr. 444; Richardson v. White, 27 id. 155; Spaulding v. American Wood Board Co., 58 App. Div. 315 ; Barton v. Speis, 73 N. Y. 133.) The defendant having successfully defended the prior action is entitled — before it is put to the trouble and expense of defending this one — to receive such indemnity as the costs of the former action will afford. The motion was made promptly and before an answer was interposed.

The case is clearly distinguishable from Dare v. Murphy (18 Abb. 27. C. 466). In that case there was proof to the effect that the former action was dismissed by reason of the negligence of the plaintiff’s attorney and there was also a question as to whether the issues involved in the two actions were identical. Here no such questions arise. The cause of action set out in the complaint in the City Court and the one set out in the complaint in this court are precisely the same, and no claim is made that the action in the City Court was dismissed for a fault other than the plaintiff’s.

I am of the opinion that the order, appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

O’Brien and Ingraham, JJ., concurred; Hatch, J., dissented.

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