
    Daniel J Sprague, App'lt, v. The Bartholdi Hotel Co., Resp't.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 14, 1893.)
    
    Stay—Non-payment of costs.
    Where a plaintiff after being defeated in an action upon an alleged oral contract, brings action to reform, a written contract by inserting therein substantially the same matters litigated in the first action, and for damages for breach of the contract as reformed, it is proper to stay said action for non-payment of the costs of the former one on the ground that it is Yexatiously brought.
    Appeal from an order staying all proceedings on the part of the plaintiff until ten days after the payment of two judgments for costs recovered in a former action by the defendant' and against Sprague.
    The following is the opinion of the court below :
    Patterson, J.—This motion is one which should be granted. The simple statement of the case is that this plaintiff, Sprague, sued in the superior court to recover damages for the breach of a contract which he alleged to exist, and upon the establishment of which he would have been entitled to a recovery. That was an alleged oral contract, and the plaintiff was defeated ; and judgment was rendered against him, which was affirmed, and a large bill of taxed costs accrued against him. He has now brought another action in this court, in which he seeks to reform a certain alleged written contract by inserting therein matters which would create a liability—and they are substantially the same matters as, those litigated in the other action—and, after reforming the contract, to recover damages for the breach thereof as reformed. All this matter of what the parties had agreed upon was evidently, in. substance, gone over in the action in the superior court, and the-present suit seems to be a mere attempt,by a change of the scheme-of the action and the form in which it is instituted, to accomplish a result which has heretofore been unattainable. Under such circumstances the rule of law is plain as affecting this motion, and that is, where a second action is vexatiously brought the court, will stay it until the costs of the prior action are paid. It is true that under the old practice a court of equity never required the payment of costs in an action of law which involved the same subject matter as a condition of prosecution of a suit in equity unless,the suit was brought to vex the defendants. The books are full of cases on that point, but here, it seems to me, the case presented is of that character, and clearly demands that the motion should be granted, with ten dollars costs; order to be settled on two days’ notice.
    
      J. N. Bayes, for app'lt; C. P. & J. A. B. Cowles, for resp't.
   Per Curiam.

For the reasons given in the of the court belo.w, upon the decision of the motion resulting in the order appealed .from, we think the order was right, and should be affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. J., O’Brien and Ingraham, JJ., concur.  