
    (71 Hun, 211.)
    DRAKE v. NEW YORK IRON MINE et al.
    (Supreme Court, General Term, Second Department.
    July 28, 1893.)
    Stay of Proceedings—Payment of Costs in Previous Action.
    An order staying proceedings until the costs of a previous action have . keen paid will not be granted at defendant’s request, when an attempt by plaintiff to set up in the previous action the facts on which the second action is based was defeated by the objection of defendant.
    
      Appeal from special term, Queens county.
    Action by John R. Drake against the New York Iron Mine, William L. Wetmore, and Matthew H. Maynard, as assignee in bankruptcy of said Wetmore. From an order staying proceedings until the costs of a former action should be paid, plaintiff appeals.-
    Reversed.
    For former report, see 21 N. Y. Supp. 491, 1117.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    Roger M. Sherman, for appellant.
    Frank E. Smith, for respondents.
   PRATT, J.

The plaintiff appeals from an order staying proceedings until the cost of a previous action are paid. Such orders are properly made where a plaintiff vexatiously pursues a defendant with unnecessary litigation, (Ex parte Stone, 3 Cow. 380,) 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 in 8 N. Y. Supp. 193, 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 original motion denied, with costs in all the courts. All concur.  