
    Mary Ann Noonan, Adm'rx, App'lt, v. The New York, Lake Erie & Western Railroad Co., Resp't.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1893.)
    
    1. Motions and orders—Renewal op motion.
    Where new and different facts have arisen, a motion may be renewed without leave.
    2. Same—Stay por non-payment op costs.
    In a former action by plaintiff the exceptions were ordered heard at general term, but plaintiff did not file the case and exceptions settled and gave notice that she abandoned them, and afterwards commenced this action for the same cause. Defendant moved to compel her to file the case and for a stay in this action until the costs of the first action were paid. The latter motion was denied and the former granted, hut reversed on appeal, and defendant entered judgment and taxed its costs. Held, that these new facts changed the situation of the parties, so that the motion for a stay could he renewed without leave.
    
      ■ Appeal from, an order of the Erie special term staying all proceedings in this action until the costs and disbursements of a former action between the same parties are paid.
    
      M. Fillmore Brown, for app'lt; George F. Brownell, for resp't.
   Haight, J.

In March, 1890, the plaintiff commenced an action in the supreme court, Genesee county, against the defendant to recover the damages which she had sustained by reason of the death of her son, occasioned by the alleged negligence of the defendant. Issue was joined in the action, and in November, 1891, it was brought to trial before the Hon. Henry A. Childs and a jury, at the Genesee circuit, which trial resulted in a nonsuit. An order was thereupon made giving the plaintiff ninety days to make a case and exceptions, and that the motion for a new trial be heard at the general term in the first instance, and that all proceedings be in the meantime stayed.

On the 14th day of October, 1891, a case containing exceptions was made, settled, signed and ordered to be filed. On the same day the order directing the motion to be heard in the first instance at the general term was vacated so as to allow the motion for a new trial to be made at the special term. The plaintiff did not file a case and exceptions as required, but on the 18th day of October thereafter served a notice upon the defendant that the plaintiff had abandoned her case and exceptions, and that an order without notice might be entered to that effect.

On the 28th day of October this action was commenced, in which the plaintiff seeks to recover damages for the death of her son, alleged to have resulted from the negligence of the defendant. Thereupon the defendant noticed two motions for hearing at the Erie special term, one in the first action, to compel the plaintiff to file the case and exceptions as settled, and the other in this action, asking that all the proceedings on the part of the plaintiff be stayed until the costs and disbursements in the first action should be paid. Both motions were argued at the same time. The motion in the first action was granted, and the plaintiff was ordered to file the case and exceptions within five days. And the motion in the second action was denied, with ten dollars costs of motion. Thereupon the plaintiff appealed to the general term from the order made in the first action, and that court reversed the order of the special term and denied the motion. The defendant then entered final judgment in the first action and taxed its bill of costs, and then noticed this motion for hearing based upon all of the papers and proceedings in the action.

The general rule is that a motion once denied at a special term cannot be renewed and heard by another special term, unless by the "terms of the order it appears that the motion was denied on some technical reason not affecting the merits, or leave is granted to renew the motion. Jay v. De Groot, 2 Hun, 205; Seaman v. Mc Reynolds, 52 N. Y. Supr. Ct., 543; Dunn v. Meserole, 5 Daly, 434; Talcott v. Burnstine, 13 St. Rep., 552; Klumpp v. Gardner, 44 Hun, 515; 9 St. Rep., 355.

But this rule has exceptions. Where new and different facts have arisen a motion may be renewed without consent. Smith v. Zalinski, 94 N. Y., 519, 524; Goddard v. Stiles, 99 id., 640.

The question, then, is as to whether the motion is based upon a new and additional state oí facts.

It will be remembered that the first motion for a stay was made in connection and at the same time with the motion directing the plaintiff to file the case and exceptions that had been settled in the former action. At that time the former action was pending, and no judgment had been entered therein. The order of the special term seems to have been made upon the theory that the plaintiff’s right to review or to move for a new trial could not be terminated by notice, and that it was her duty to proceed thereon, and that the case was still pending undetermined. That being the case, the motion in this action could not well prevail, and was, therefore, denied. On the review in the general term the order of the special term was reversed. By such reversal the court in effect held that the plaintiff’s right to move for a new trial was abandoned by her notice to that effect, and that the defendant could enter final judgment upon the nonsuit. After the decision of the general term the defendant entered its judgment and taxed its bill of costs, and then renewed the motion setting forth the proceedings in the general term, the entry of final judgment, etc., as additional facts.

As we have seen, the motion was based upon all the papers in the action, including those of the former motion, and of the order entered thereon. The special term was thus apprised of all of the proceedings, and of the former motion, and of the disposition that had been made thereof. And it appears to us that the new facts stated materially and substantially change the situation of the parties from that existing at the time the former motion was made. At that time the former action was pending undetermined. At the time of making this motion the former action had been terminated by final judgment, and the costs had been taxed thereon.

The complaints in the two actions differ some as to phraseology, and as to the grounds upon which negligence is charged. The gist of the action as alleged in each complaint is, however, in substance the same.

We do not regard the question discussed in reference to the election of remedies as having any bearing upon the motion.

The order should be affirmed, with ten dollars costs and disbursements.

Dwight, P. J., Macomber and Lewis, JJ., concur.  