
    Isaac Tanzsheim, Appellant, v. Brooklyn, Queens County and Suburban Railroad Company, Respondent.
    
      A motion should he determined on the facts existing at the time it is made — stay for non-payment of costs.
    
    Where the defendant in an action makes a motion to stay the plaintiff’s proceedings, because of the non-payment by him of a judgment for costs rendered against him in an'action which he had previously brought against a third party upon the same cause of action, but does not acquire title to such judgment until after the service of the motion papers, the motion should be denied.
    Appeal by the plaintiff, Isaac Tanzsheim, from an order of the County Court of Kings county, entered in the office of the clerk of the county of Kings on the 3d day of March, 1905, staying-all proceedings herein until the payment by the plaintiff of costs recovered by the defendant in a former action.
    
      Mitchell May, for the appellant.
    
      I. R. Oeland [George D. Yeomans with him on the brief], for the respondent.
   Rich, J.:

On March 17, 1903, the plaintiff commenced an action against the Brooklyn Heights Railroad Company in the Municipal Court of'the city of New York to recover damages alleged to have been sustained in consequence of an assault committed- upon him by one of the servants of that defendant. The complaint was dismissed upon the trial, and a judgment for seventeen dollars and forty cents costs docketed in favor of defendant and against the plaintiff. This judgment was never collected or paid. On May 25, 1903, the plaintiff commenced this action against the same defendant, to recover for the same cause of action, in the County Court of Kings county. On June 11, 1903, the Brooklyn, Queens County and Suburban Railroad Company was, by stipulation, substituted as defendant in place of the company against which the action was commenced. Each company is a domestic corporation, existing at the time of the commencement of said actions, and down to the time of the granting of the order appealed from, transacting and carrying on business entirely independent of, and, so far as shown, having no connection with each other. No further proceedings appear to have been taken -in the action until February 23, 1905„ when the defendant moved in the County Court for an order staying all proceedings on the part of the plaintiff until he paid the costs .of the former action. It appeared that the judgment was recovered by the Brooklyn:Heights Railroad Company. On February twenty-seventh (four days after the-submission of the motion) the defendant procured an assignment of said judgment from the judgment creditor, the Brooklyn Heights .Railroad Company, and on the following day an affidavit was made by 'Frank P. Reilly, counsel for defendant, alleging such an assignment, to which, were attached copies of the summons and complaint in this - action and stipulation for substitution-. An order .was thereupon made direct-' ing plaintiff to pay to the defendant the sum of seventeen dollars- and forty cents and stayed all proceedings on his part, except to review or vacate it, unless its. terms were, complied with. From such order this appeal is taken.

It appears that, at the time the motion was made, the defendant had no interest in the costs of the former action and was not entitled to -the relief sought, and, until proof of such assignment and consequent interest was before the court, it . was not warranted in .granting the motion.

The motion should have been determined upon the facts existing at the time it was made. The defendant was not then entitled to the reliéf sought, and should, not be permitted to enjoy the fruits of an order based on the ownership of the judgment not acquired until after the service of the motion papers. (General Rules of Practice, rule 21; 1 Rumsey Pr. [2d ed.] 251, -and cited cases.) It had no interest in the judgment until nine days after the motion papers were served and four days after the motion was submitted to the "court.

The order appealed from should be reversed, with costs.

Bartlett, Woodward and Miller,. JJ., concurred.

Order of the County Court of Kings county reversed, with ten dollars costs and disbursements.  