
    Alfred Skeels, Appellant, v. Peter Bodine, Respondent, Impleaded with Others.
    
      Jfon-payment of costs in an action “dismissed without prejudice to an action at law ” — the action at law will not be stayed because thereof.
    
    Where the court at the trial of an action brought to procure the reformation of a written contract and also to recover pecuniary damages, dismisses the complaint “without prejudice to an action at law on the written contract,” the plaintiff should be allowed to commence and prosecute such an action at law, notwithstanding his failure to pay the costs awarded to the defendants in the prior action.
    Appeal by the plaintiff, Alfred Skeels, from an order of the-Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 4th day of May, 1901, staying the plaintiff’s proceeding in the above-entitled action until the payment of $508.29, costs awarded to the. defendant, Peter Bo.dine and another, by a judgment in an action-in the county of New York, in which they were sued by the same-plaintiff.
    
      H. Iluffmcm Browne, for the appellant.
    
      Charles Fox, for the respondent.
   Willaed Bartlett, J.:

It does not seem to me that the defendant made out a case for a stay of proceedings. The main purpose of the New York county action was to procure a reformation of the written contract between the parties. It is true that the complaint in that-suit also demanded a money judgment; hut the court, in refusing to reform the agreement, declined to pass upon this demand for pecuniary damages. Hr. Justice Kellogg expressly declared in his formal decision that he could not “ properly under present allegations of the complaint try issues which • might be formed under a complaint, alleging the written contract as it is.” He, therefore, directed a dismissal of the complaint in the New York county action, “ without prejudice to an action at law on the written contract.”

The present suit is precisely the sort of action which the learned judge thus declared that the plaintiff should have liberty to bring unprejudiced by the result of the litigation in the county of New York. If the-words “without prejudice” are to be given any effective meaning beneficial to the plaintiff, they must be held to import that he is at liberty to institute- and proceed with the action now before us just as freely as though there never had been any lawsuit between the parties in New York county at all. It can hardly be held that a judgment does not operate to the prejudice of a defeated plaintiff so far as the institution of another suit is concerned if it has the effect of preventing him from prosecuting such a suit.

Apart from any other question arising on this appeal I think that the phraseology of the decision in the New York county suit, to which I have called attention, should prevent us from regarding the present litigation as vexatious, and renders it proper that the appellant should be allowed to proceed with this action, notwithstanding the non-payment of costs in the New York county action.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion for stay denied, with costs.  