
    Marvin Decker, Plaintiff, v Delores Cady, Defendant.
    County Court, Albany County,
    November 14, 1975
    
      
      Abdella & Abdella (Carter, Conboy, Bardwell, Case & Black-more of counsel), for plaintiff. Hubert D. Miles for defendant.
   Arnold W. Proskin, J.

The plaintiff has moved this court, at Special Term, for an order pursuant to CPLR 3211 (subd. [b]) striking defendant’s affirmative defense, wherein it is alleged that payment of costs, as a result of a judgment in a prior action between the same parties herein, is a prerequisite to a commencement of this action. Defendant’s cross motion seeks dismissal of the action, arguing that the prior action is still pending until the judgment for costs has been satisfied.

An earlier suit was originally brought by the plaintiff in Rensselaer County Court, but was dismissed for lack of jurisdiction. Judgment was entered for the defendant dismissing the action without prejudice and for the sum of $93, costs. Thereafter, plaintiff commenced a new action in this court, based upon the same operative facts.

In Porter v Kingsbury (77 NY 164), it was held that the defense of a former suit pending can only be supported by showing, as a matter of fact, that a former suit was actually pending when the second action was commenced and that such a defense cannot be supported by proof of an unsatisfied judgment against the plaintiff in a prior unsuccessful action upon the claim, which is the subject of the second action. The court noted in dicta that the defendants were at liberty to issue execution to collect costs awarded by the judgment. (See, also, Ferrandino v Cappelli, 12 AD2d 604.) This 1879 Court of Appeals case is still the law and, in my opinion, a good common-sense rule of law.

Plaintiff’s motion granted and defendant’s cross motion denied.  