37 N.Y.S. 1118 | N.Y. App. Div. | 1896
We think this motion should have been granted.
The plaintiff, as administrator, commenced an action in the Superior Court to recover for the death of the plaintiff’s intestate, caused by the negligence of the defendant. When that action came on for trial the plaintiff suffered a default, and the complaint was dis- ■ missed. Subsequently plaintiff moved to open the default, and that motion was granted upon payment of the taxable costs of the-action. The plaintiff failed to pay such costs, and judgment was entered dismissing the complaint, with' costs. Subsequently plaintiff' commenced a new action in the Supreme Court upon the same cause of action, the complaint being substantially the same as the complaint in the action in the Superior Court. It thus being perfectly apparent that the new action was commenced'for the purpose of evading & compliance with the terms imposed by the Superior Court as a condition of opening the default, it would be opposed to the orderly practice to allow a party to a litigation thus to trifle with the orders of the court, and by allowing an action to drop and
The order, should, therefore, be reversed, with ten dollars costs -■and disbursements, and the motion granted.
Present —Van Bbunt, P. J., Williams, Patterson, O’Brien rand Ingraham, JJ.
Order reversed, with ten dollars costs and disbursements, and motion granted.
