#### John R. Drake, Appellant, *v.*The New York Iron Mine, Respondent.

*.Stay of the plaintiff’s proceedings until the costs of a piior action cvre paid*— *identity of the cmises of action.*

"While orders staying a plaintiff’s proceedings, until the costs of a previous action decided in favor of the defendant have been paid, are properly made where a plaintiff vexatiously pursues a defendant with unnecessary litigation, there is no inflexible rule compelling courts to make such an order where the plaintiff is not in fault and the result would he not to prevent hut to promote injustice.

*212One of the requisites to a until the costs of a previous action are paid is identity of the subject-matter of the two actions.

Where a defendant has once procured a ruling that the causes of action are different, and has prevented a determination in the prior action of the facts set up in the subsequent action, rendering a new action necessary, he cannot be heard to assert, on an application to stay the plaintiff’s proceedings in the subsequent action until the costs of the prior action have been paid, that the causes of action are the same.

Appeal by tbe plaintiff, John R. Drake, from an order of tbe Supreme Court, made at Special Term and entered in the office of tbe clerk of Queens county on tbe 2d. day of April, 1893, upon tbe motion of tbe defendant, staying all proceedings on the part of tbe plaintiff until tbe costs of a previous action shall have been paid.

*Roger M. Sherman,*for tbe appellant.

*Frank F.*Smith, for tbe New York Iron Mine, respondent.

Pratt, J.:

Tbe plaintiff costs of a previous action are paid.

Such orders are sues a defendant with unnecessary litigation *(Ex parte Stone,*3 Cow. 380), but there is no inflexible rule compelling courts to make such order where tbe plaintiff is not in fault and tbe result would be Pot to prevent but to promote injustice.

In tbe present case cause of action. There is no answer, not even an affidavit of merits, nor any doubt thrown over tbe justice of plaintiff’s claim.

So far as can plaintiff has for many years bad meritorious grounds of complaint against which defendant has successfully defended itself by skillful use of technicalities. "Whether in such case a stay of proceedings should be granted, even should defendant bring itself within tbe letter of tbe rule, may well be doubted. of

But one of the grounds a the subject-matter of the actions.. In the former action (reported 25 J. & S. 404), the plaintiff sought to introduce by a supplemental complaint tbe facts upon which this action is based. This was pre*213vented 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 defendant has 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, it cannot now be sustained when it seeks a stay and asserts the causes of action to be the same.

The order appealed from should be reversed and original motion denied, with costs in all the courts.

Harvard, P. J., and DyemaN, J., concurred.

Order reversed, with costs and, disbursements, and motion denied, .with costs.