
    John Wolfe, Respondent, v. The Blue Ribbon Auto and Carriage Company, Appellant.
    First Department,
    June 18, 1915.
    Stay of proceedings — injunction issued in foreign State—failure to pay costs awarded in foreign action.
    Where a resident of a foreign State, after a judgment had been entered against him for costs in two actions in said State, in which he had been nonsuited, claimed a residence in this State and commenced an action for the same cause and against the same defendant, who thereupon obtained an injunction in the foreign State restraining plaintiff from commencing any further action upon said claim, a motion by the defendant that all proceedings on the part of the plaintiff in the action in this State be stayed until the injunction order be vacated or set aside, and until plaintiff pays the costs awarded in the foreign State, should be denied in so far as it asks a stay until the injunction be vacated or set aside, where there are two questions of fact involved which the court cannot decide upon affidavits, namely, as to the residence of the plaintiff and as to whether the injunction order was ever served on him. But said motion should be granted to the extent of staying further proceedings until the payment of costs in the prior actions.
    The rule that the plaintiff must pay the costs incurred in an unsuccessful action before prosecuting a second action against the same defendant upon the same cause, is not confined to actions commenced in the same court, and is supported by the same reason, where the successive actions are brought in different States, as where they are brought in different courts in the same State.
    Appeal by the defendant, The Blue Ribbon Auto and Carriage 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 14th day of April, 1915, denying its motion for a stay of proceedings herein.
    
      
      William L. O’Brion, for the appellant.
    
      Rufus M. Overlander, for the respondent.
   Scott, J.:

The plaintiff, then a resident of Connecticut, sued the defendant, a Connecticut corporation, in two successive actions in that State, for an injury suffered in Connecticut. He was nonsuited in both actions, and a judgment was entered against him for costs, which have not been paid. After he had been nonsuited in- his second action in Connecticut plaintiff came into this State, and, as he claims, became a resident here, and thereupon commenced this action for the same cause of action upon which he had so unsuccessfully sued in Connecticut. As soon as this action had been commenced defendant began an action against plaintiff in the Supreme Court of the State of Connecticut and obtained an injunction restraining plaintiff herein from commencing any further action against defendant upon said claim. This injunction, it is said, was served upon plaintiff in the State of Connecticut, although he denies that it was so served. Defendant now moves that all proceedings on the part of plaintiff in this action be stayed until the injunction order issued in Connecticut be vacated or set aside, and until plaintiff pays to defendant the costs awarded in the action in Connecticut. From an order denying this motion defendant appeals.

So far as concerns that branch of the motion which asks that plaintiff’s proceedings be stayed until the Connecticut injunction be vacated or set aside, we think that under the circumstances the denial was justified. There are two questions of fact involved which we should not undertake to decide upon the affidavits, to wit, whether plaintiff was a resident of this State or of Connecticut when he began this action and the injunction order was served in Connecticut, _ and whether in fact that injunction order was ever served on him. If plaintiff was a non-resident of this State when he commenced this action that fact can be pleaded by answer, as can the effect of the Connecticut injunction order, if it be in law a .bar to plaintiff’s prosecution of the present action.

We think, however, that the motion should have been granted to the extent of staying further, proceedings until the payment of the costs incurred in the Connecticut action. It has been the practice of the courts for many years to require a plaintiff who has unsuccessfully sued upon a cause of action and incurred a bill of costs, to pay those costs before prosecuting a second suit against the same defendant upon the same cause of action. This is to afford a successful defendant such indemnity against further annoyance for the same cause as the costs of the former action will furnish. (Ingrosso v. Baltimore & Ohio R. R. Co., 105 App. Div. 494.) The application of the rule is not confined to actions commenced in the same court (Perkins v. Hinman, 19 Johns. 237; Jackson v. Carpenter, 3 Cow. 22), and is supported by the same reason where the successive actions are brought in different States as where they are brought in different courts in the same State.

The order appealed from must be reversed and the motion granted to the extent above indicated, with ten dollars costs and disbursements to appellant.

McLaughlin, Laughlin and Clarke, JJ., concurred; Ingraham, P. J., concurred in result.

Order reversed, with ten dollars costs and disbursements, and motion granted to extent indicated in opinion. Order to be settled on notice.  