
    John J. Faulkner, Plaintiff, v. Francis A. Cody, Impleaded, Etc., Defendant.
    (Supreme Court, Oneida Special Term,
    June, 1899.)
    Injunction — Nonpayment to the defendant of costs of a former action will not restrain prosecution of a present action for the same cause unless he proves that he has a defense to it.
    It is to some extent discretionary with the court whether it will restrain the prosecution of a pending action until costs, awarded the present defendant in a former action which involved the same subject-matter, have been paid, and where the defendant makes no proof that he has a meritorious defense to the present action his motion to restrain its prosecution will be denied.
    Motion by defendant Cody to restrain prosecution of this action until payment of costs awarded to him by judgment dismissing complaint in a prior action brought by present plaintiff against said defendant Cody.
    S. M. Lindsley, for motion.
    J. I. Sayles, opposed.
   Hiscock, J.

I think this motion should he granted if made upon proper and sufficient papers. • The subject-matter of the present suit was undoubtedly included in and covered by the allegations of the complaint in the prior action although somewhat different relief is sought herein. Sufficient papers, however, are not presented upon this motion. ISTo answer has been served in the present case and there is no affidavit of merits or other affidavit indicating that defendant has a meritorious defense. Inasmuch as the granting of an application like this is more or less one of discretion some evidence should be presented of the merits of defendant’s position. This motion, therefore, is denied, with $10 costs to plaintiff to abide event, but without prejudice to the right of defendant to renew the motion if he is so advised.

Motion denied, with $10 costs to abide event, but without prejudice to defendant to renew.  