GERTLER v. BROOKLYN, Q. C. & S. R. CO.
(Supreme Court, Appellate Term.
March 24, 1911.)
1. Costs (§ 277)—Judgment fob Costs—Stay.
A motion to stay proceedings until the payment of costs of a prior action will generally be granted, unless special facts are presented which indicate that an exception ought to be made.
[Ed. Note.—For other cases, see Costs,-Cent. Dig. §§ 1048-1060; Dec. Dig. § 277.]
2. Costs (§ 277)—Judgment fob Costs—Stay.
Where defendant delayed moving to stay proceedings until payment of costs of a prior action for over a year after the judgment in the prior action was entered, and issue had been joined in the new action and presented no excuse for such delay, its motion would be denied.
[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 1048-1060; Dec. Dig. § 277.]
Appeal from City Court of New York, Special Term.
Action by Abraham Gertler against the Brooklyn, Queens County & Suburban Railroad ’ Company. From an order of the New York City Court, denying defendant’s motion to stay proceedings until the payment of costs of a prior action, it appeals.
Affirmed.
Argued before SEABURY, PAGE, and BIJUR, JJ.
George D. Yeomans (D. A. Marsh, of counsel), for appellant.
Emanuel Jacobus, for respondent.
SEABURY, J.
This is an appeal from an order denying defendant’s motion for a stay of proceedings until the payment of the costs of a prior action. [1] As a general rule, such a motion will be granted, “unless special facts are presented which indicate that an exception ought to be made.” Wilner v. Independent Order of A. I., 122 App. Div. 615, 107 N. Y. Supp. 497.
[2] Judgment for costs in the prior action was entered on May 24, 1909. Issue in the present action was joined on November 13, 1909, and this motion was not made until November 30, 1910. The defendant, having delayed making this motion for over one year, until this action was upon the day calendar for trial, and having presented no excuse of any kind for its delay, cannot justly complain that its motion was denied. If the plaintiff was to be stayed from the prosecution of this action, justice required that he should have notice of *619this fact before he was put to the expense of preparing for trial. Under the circumstances disclosed, we think the discretion of the court below was properly exercised.
Order affirmed, with $10 costs and disbursements. All concur.