
    John R. Drake, App’lt, v. The New York Iron Mine, Resp't.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 28, 1893.)
    
    Stay—Non-payment of costs of former action—Identity of subject MATTER.
    Where upon the former trial the plaintiff sought to introduce by supplemental complaint the facts upon which the present one is based, but was prevented by the objection of defendant and the ruling of the court thereon, the defendant cannot be allowed, for the purpose of procuring a stay for non-payment of costs of the former action, to assert the causes of action to be the same.
    Appeal from order staying all proceedings against the defendant, the New York Iron Mine, until plaintiff pays the costs and allowance of a former action.
    
      Roger M. Sherman, for app’lt; Frank E. Smith, for resp’t.
   Pratt, J.

The plaintiff appeals from an order staying proceedings until the costs of a previous action are paid.

Such orders are properly made where a plaintiff vexatiously pursues a defendant with unnecessary litigation, Re Stone, 3 Cow., 880, but there is no inflexible rule compelling courts to make such order where the plaintiff is not in fault, and the result would be not to prevent, but to promote injustice.

In the present case the complaint, which is verified, states a good cause of action. There is no answer, not even an affidavit of merits, nor any doubt thrown over the justice of plaintiff’s claim.

So far as can be learned from the various records before us, the plaintiff has for many years had meritorious grounds of complaint against which defendants have successfully defended themselves by skillful use of technicalities. Whether in such case a stay of proceedings should be granted, even should defendants bring themselves within the letter of the rule, may well be doubted.

But one of the grounds of a successful application is identity of the subject matter of the actions.. In the former action, reported 25 J. & S., 404; 29 St. Rep., 207, the plaintiff sought to introduce by a supplemental complaint the facts upon which this action is based. This was prevented by the objection of the defendant and the ruling of the court that the present cause of action could not be introduced and tried in that action.

As defendants have once procured a ruling that the causes of action are different, and prevented a determination in that action of the facts now set up, rendering a new action necessary, they cannot now be sustained when they seek a stay, and assert the causes of action to be the same.

Order appealed from reversed, and the original motion denied, with costs in all the courts.

Barnard, P. J., and Dykman, J., concur.  