
    new york Superior court.
    Rachel Unger agt. The Forty-second Street, &c., Railroad Company.
    Where after service of the summons and complaint, the defendant stays the plaintiff’s proceedings until the costs of a former suit are paid, the defendant cannot move under section 274 to dismiss the complaint, where the costs have not been paid and the stay is in force.
    
      Special Term,
    
    
      April, 1866.
    This was a motion to dismiss the complaint for want of prosecution.
    
      Thomas Bisgood, for plaintiff.
    
    Moses Ely, for defendants.
    
   Monell, J.

After the service of the summons and complaint, the defendants obtained an order staying the plaintiff’s proceedings' until the payment of the costs of a former suit between the parties, and extending the time to answer for twenty days after such costs shall have been paid. The costs have not been paid, nor the stay of proceedings vacated, and the defendants h^ave not answered the complaint.

A motion to dismiss under the twenty-seventh rule of court can only be made after an issue of fact has been joined in the action, and the fourth subdivision of section 274 of the Code, relates to actions against several defendants where the plaintiff fails to proceed against the defendant or defendants served.

There being no provision in the Code, or in the rules of court, applicable to this motion, it must be denied.  