
    LOFTUS v. STRAIGHT LINE ENGINE CO.
    (Supreme Court, Appellate Division, Fourth Department.
    March 7, 1906.)
    Costs—Payment of Costs in Pbiob Action—Stay.
    A defendant does not by answering a subsequent action waive his right to stay proceeding therein until the costs of a prior action due him are paid.
    [Ed. Note.—For cases in point, see vol. 13, Cent. Dig. Costs, § 1060.]
    Appeal from Special Term, Onondaga County.
    Action by Thomas Loftus against the Straight Line Engine Company. From an order denying a motion to restrain plaintiff from proceeding in an action until the costs recovered in a former action have been paid, defendant appeals.
    Reversed.
    
      Argued before McLENNAN, P. J., and SPRING, WILLIAMS, NASH, and KRUSE, jj.
    Henry A. Talbot, for appellant.
    Welch & Parsons, for respondent.
   NASH, J.

This is an appeal from an order of the Special Term denying a motion made by the defendant to restrain the plaintiff from taking any further proceedings in the action, until he shall have paid the costs and disbursements - recovered by the defendant in a former action.

The rule is that if the plaintiff brings a second action without paying the costs of the first, the court will order payment of the costs of the first suit before allowing the second to proceed. Cuyler v. Vanderwerk, 1 Johns. Cas. (2d Ed.) 247, note. The rule recites that the dé-fendant answered before making the application, and the point is made by the respondent that the defendant not having made the motion until after serving its amended answer, waived by its laches any right which it might have had to the stay. In the case cited, it is said: “Per Curiam. The defendant is never too late, pending the second suit, before the' trial, to make his application to stay the proceedings." In Jackson v. Miller, 3 Cow. 57, the motion was made after a verdict in the second action had been taken subject to the opinion of the court; objection was made that the application came too late: “ Per Curiam. The application comes before us in season, if made at any time while the cause is in a course of litigation.” In Spaulding v. American Wood Board Co., 58 App. Div. 314, 68 N. Y. Supp. 945, the case relied upon by the respondent, the motion was made although not heard, before an answer was served. That fact was referred to in the opinion, and it was observed, that the motion was in time, from which it might be inferred that the motion should be made before serving an answer. But as there was no discussion of the question, the case cannot be regarded as an authority for overturning the long established rule, that the right is absolute, and that the application for the stay may be made at any time while the cause is in the course of litigation.

Order reversed, with $10 costs, and disbursements, and order restraining plaintiff’s further proceedings until payment of the costs of the former action granted, with $10 costs. All concur.  