Lass v. Volk Housewrecking Co.

The respondent’s attorney, in his affidavit opposing the motion for a stay, admite that he commenced an ■action against the defendant on July 7, 1910, under the common law, to recover damages for personal injuries; that such action was discontinued, and that, on July 26, 1910, he began another action for the plaintiff herein against the defendant under the Employers’ Liability Act for damages for personal injuries, both actions arising out of the siame transaction.

The respondent urges that, as the causes of action are not identical, the order appealed from should be affirmed.

It has been held that the Employers’ Liability Act gives a new cause of action. Uss v. Crane Co., 138 App. Div. 256. It is not essential, however, that there should be a complete identity of the subject-matter of both actions in order to entitle a party to a stay. Spaulding v. Am. Wood Board Co., 58 App. Div. 315; Sprague v. Bartholdi Hotel Co., 68 Hun, 565.

The plaintiff having instituted and abandoned one suit upon substantially the same cause of action, the defendant should not be subjected to another action upon the same facts without receiving the costs of the former action.

Order reversed, with ten dollars costs and disbursements, and motion granted.

Present: Seabury, Lehman and Gerard, JJ.

Ordered reversed.