
    Francelia O. Patchen, Appellant, v. The President, Managers and Company of the Delaware and Hudson Canal Company, Respondent.
    Res ad judicata — the judgment must be alleged to have been on the merits—effect of the non-payment of the costs of the prior action.
    
    Án answer alleging that the plaintiff had previously brought an action against the defendant for the same cause; that such action was tried and the complaint dismissed with costs and a judgment entered to that effect; that the judgment remained in full force and effect, and that the costs had not been paid, is demurrable, as under section 1209 of the Code of Civil Procedure it is essential to the sufficiency of the plea of the former adjudication for the defendant to allege that the dismissal was upon the merits.
    The failure to pay the costs of the former action does not deprive the court of jurisdiction, but constitutes a matter for the consideration of the court on a motion for an order staying proceedings in the second action.
    Appeal by the plaintiff, Francelia O. Patchen, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 18th day of February, 1901, overruling the plaintiff’s demurrer to the second defense contained in the defendant’s answer, and also from an interlocutory judgment entered in said clerk’s office on the 23d day of February, 1901, upon said order.
    The plaintiff commenced an action against the defendant for false imprisonment. To the complaint in said action the defendant interposed an answer, admitting that it was a domestic corporation, and denying each and every other allegation of the complaint. ' The answer also contained new matter, of which the following is a copy:
    “ Third. For a further answer .the defendant alleges and states the fact to be, that heretofore, and in or about the month of March, 1900, the plaintiff above named brought an action against this defendant and John Fitzgerald for. the same cause of action set forth in the complaint herein; that such action was tried in the month of November, 1900, and on such trial the plaintiff’s complaint was dismissed as to this defendant, with costs, and ajudgmerit so dismissing the complaint with $57.74 costs, in favor of said above named defendant and against said plaintiff, was entered in the office of the clerk of Albany county, which judgment remains un reversed and of full force and effect; that the costs therein have not been paid by the plaintiff; and that the plaintiff ought not to have or maintain this action because of such former judgment and the non-payment of the costs therein.” -
    To such defense the plaintiff demurred on the ground that the' same is insufficient in law on the face thereof.
    
      Ba/rnwell Rhett Heyward, for the appellant.
    
      Lewis E. Carr, for the respondent.
   Chase, J.:

Section 1209 of the Code of Civil Procedure provides: “A final judgment, dismissing the complaint, either before or after a trial, rendered in an action hereafter commenced, does not prevent a new action for the same cause of action, unless it expressly declares, or it appears by the judgment-roll, that it. is rendered upon the merits,”

A plea of former adjudication is fatally defective unless it alleges that the former judgment or decree was on the merits. (9 Ency. PI. & Pr. 619-621; 2 Van Fleet Form. Adj. 1327.)

The fact that costs of a former action between the same parties and for the same subject-matter have not been paid, does not deprive the court of jurisdiction when set in motion by the party resting under a stay. The only effect is to render the proceedings irregular, and when brought to the attention of the court the party violating the stay will be dealt with as may be proper. (Wessels v. Boettcher, 142 N. Y. 212.)

Apart from the provision of the Oode of Civil Procedure (§ 779) relating to a stay against a party required to pay costs of a motion or any other sum of money directed by an order to be paid, the court has power in regard thereto, by reason of its equitable cognizance over suitors, to prevent a multiplicity of actions and harassing and oppressive litigation. Having the power, it is for the court to determine the propriety of its exercise in a given case. (Barton v. Speis, 73 N. Y. 133.)

The fact that the costs of a former action had not been paid is not a defense, but can be brought to the attention of the court on a motion for an order staying proceedings in the action.

All concurred.

Order and interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with usual leave to defendant to amend answer on payment of costs.  