Wetzel v. Barhite, 157 N.Y.S. 297

Wetzel v. Barhite

157 N.Y.S. 297 | N.Y. App. Term. | 1916

Guy, J.

The complaint in the Supreme Court action shows that it was an action to recover for broker’s *497commissions. Defendant’s attorney’s moving affidavit, made after the service of the summons, alleges that this action is for the same cause, viz.: to recover for the identical broker’s commissions. Plaintiff’s answering affidavit does not deny this. A summons without a complaint is required to be endorsed with “ a statement of the nature and substance of the plaintiff’s cause of action.” Mun. Ct. Code, §§ 19, 78. We must assume that the moving affidavit is based upon the required endorsement upon the summons. Plaintiff has neglected to include the summons in the return. He who asserts that his own pleading is defective must prove it, as error is no longer presumed, but must be proved.

In the former District Courts trials were stayed for the nonpayment of costs of prior actions, just as they would have been in the Supreme Court. Flewelling v. Brandon, 4 Daly, 333, 334; Lewis v. Davis, 8 Daly, 185,187, 188.

The right and duty to stay a trial until the costs of a prior action for the same cause are paid does not depend upon those costs being awarded by the same court in which the later action is brought. Singer v. Garlick, 123 App. Div. 282, 283; Weil v. Manheim, 66 Misc. Rep. 566-568. Stays for nonpayment of costs of prior actions are salutary, because it is for the public interest to diminish interminable,. groundless litigation. Conlon v. National Fireproofing Co., 128 App. Div. 271.

There is nothing in the present Municipal Court Code which changes this salutary rule of the Supreme Court and District Court practice. One of the defects of the Municipal Court Act which the present Code replaced was that subdivision 15 of section 1 thereof excluded power to stay for nonpayment of costs of a prior action. McKown v. Oppenheimer, 60 Misc. Rep. *49899, 100; Goldman v. Brooklyn Heights R. R. Co., 129 App. Div. 657, 658. By making the Municipal Court a-court of record and giving it: “ Except as otherwise provided * * * the practice, pleadings, forms and procedure * * * in the supreme court (Mun. Ct. Code, § 15), the salutary Supreme Court and District Court practice of staying trials for the nonpayment of costs has been restored.

Bijur and Gavegan, JJ., concur.

Appeal dismissed with ten dollars costs.