Sprague v. Bartholdi Hotel Co. 22 N.Y.S. 1090

SPRAGUE v. BARTHOLDI HOTEL CO.

(Supreme Court, General Term, First Department.

April 14, 1893.)

Costs—Remedies—Stay op Subsequent Action.

Where plaintiff in an action on an alleged oral contract has been defeated, and a large bill of costs taxed against him, another action brought by him in equity for the reformation of a written contract, by inserting therein substantially tile same matters litigated in the prior action, will be stayed until the costs in such prior action are paid.

Appeal from special term, New York county.

Action by Daniel J. Sprague against the Bartholdi Hotel Company for the reformation of a contract, and its enforcement as reformed. From an order of the special term staying the prosecution of the action until the payment of the costs of a former action between the same parties, wherein judgment for costs was rendered against plaintiff, plaintiff appeals.

Affirmed.

The following opinion was delivered at special term by PATTERSON, J.:

This motion is one which should be granted. The simple statement of the case is that this plaintiff (Sprague) sued in the superior court to recover damages for the breach of a contract which he alleged to exist, and upon the establishment of winch he would have been entitled to a recovery. That was an alleged oral contract, and the plaintiff was defeated; and judgment was rendered against him, which was affirmed, and a large bill of taxed costs accrued against him. He has now brought another action in this court, in which he seeks, to reform a certain alleged written contract by inserting therein matters which would create a liability,—and they are substantially the same matters as those litigated in the other action,—and, after reforming the contracts, to recover damages for the breach thereof as reformed. All this matter of what the parties had agreed upon was evidently, in substance, gone over in the action in the superior court, and the present suit seems to be a mere attempt, by a change of the scheme of the action and the form in which it is instituted, to accomplish a result which has heretofore been unattainable. Under such circumstances the rule of law is plain as affecting this motion, and that is, where a second action is vexatiously brought, the court will stay it until the costs of that prior action are paid. It is true that *1091under the old practice a court of equity never required the payment of costs in an action of law which involved the same subject-matter as a condition of prosecution of a suit in equity unless the suit was brought to vex the defendants. The books are full of cases on that point, but here, it seems to me, the case presented is of that character, and clearly demands that the motion should be granted, with $10 costs; order to be settled on two days’ notice.

Argued before VAN BRUNT, P. J., and O’BRIEN and INGRAHAM, JJ.

J. N. Hayes, for appellant.

E. B. & O. P. Cowles, (C. P. & J. A. B. Cowles, of counsel,) for respondent. *