
    Harry Schwartz and Hyman Stark, Respondents, v. Minsker Realty Company, Appellant.
    First Department,
    March 12, 1915.
    Judgment — effect of failure to pay judgment for costs of discontinued action — landlord and tenant — damages for refusal to give possession.
    Until a tenant has paid judgments for costs entered against him on the discontinuance of actions brought by him against the landlord to recover damages because possession was refused, he cannot maintain a new action to recover on the same ground. And this is true, although he is unable to pay the prior costs by reason of poverty.
    
      It seems, that in an action against a landlord for failure to give a tenant possession under a lease, the measure of damages is the difference between the rent reserved and the rental value of the premises and any necessary expense incurred in preparing for occupation.
    Appeal by the defendant, Minsker Realty Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of December, 1914, denying its motion for a stay of all proceedings herein.
    
      
      Gerald B. Rosenheim, for the appellant.
    
      Max Brown, for the respondents.
   McLaughlin, J.:

The plaintiffs claim to have leased from the defendant for a term of five years certain premises in the city of ¡New York. In February, 1912, they brought an action in the Municipal Court of the City of ¡New York to recover $500 damages on the ground that the defendants had refused to let them into possession of the premises leased. The action was discontinued and judgment entered against plaintiffs for $30 costs. A short time thereafter they brought another action against the defendant in the City Court of the City of ¡New York upon the same cause of action, except that $3,000 damages were claimed. The defendant moved that all proceedings in that action be stayed until the costs in the action, in the Municipal Court had been paid. The plaintiffs then moved to discontinue the action in the City Court, which motion was granted on condition that they pay the costs of the action in the Municipal Court and also the costs in the City Court action. This they failed to do, and the motion to discontinue was denied, with $10 costs. The action was reached for trial on March 11,1914, and at the close of plaintiffs’ case the complaint was dismissed and judgment entered against them in favor of the defendant for $68.63 costs. In December, 1914, the plaintiffs commenced this action in the Supreme Court to recover $6,000 damages upon the same cause of action upon which a recovery was asked in the Municipal Court and in the City Court, except that the damages claimed were larger. The defendant then moved to stay all proceedings on the part of the plaintiffs until the costs in the two prior actions had been paid. The motion was denied and defendant appeals.

The damages sought to be recovered in each action are those alleged to have been sustained by reason of the defendant’s refusal to let the plaintiffs into possession of the premises alleged to have been leased.

In an action against a landlord for failure to give a tenant possession under a lease,”the measure of damages recoverable is the difference between the rent reserved in the lease and the rental value of the premises and any necessary expenses incurred in preparing for occupation of the premises. (Friedland v. Myers, 139 N. Y. 432; Podalsky v. Ireland, 137 App. Div. 257.) The refusal of a landlord to let a person entitled thereto into possession gives to such person the right to maintain one action to recover damages sustained. (Pakas v. Hollingshead, 184 N. Y. 211; Kennedy v. City of New York, 196 id. 19; Simon v. Bierbauer, 154 App. Div. 506.)

It has frequently been held that the non-payment of costs in an action entitles the defendant in whose favor they are awarded to stay all proceedings in a subsequent action brought by the same plaintiff upon the same cause of action, (Behrens v. Sturges, 138 App. Div. 537; Hempsted v. White Sewing Machine Co., 134 id. 575; Singer v. Garlick, 123 id. 282; Ingrosso v. Baltimore & Ohio R. R. Co., 105 id. 494.) The rule is to be applied in all cases unless there be special facts and circumstances presented which show that it would be unjust and inequitable to apply it. Here no such facts or circumstances are presented. The pecuniary inability of a party to pay the costs is not sufficient to bring the case within the exception. (Wilner v. Independent Order Ahawas Israel, 122 App. Div. 615; Muratore v. Pirkl, 109 id. 146.) This was the only fact stated or reason given why the stay should not be granted until the, costs referred to had been paid.

The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

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