Lass v. Volk Housewrecking Co.

The respondent’s attorney in his affidavit opposing the motion for a stay admits 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 25, 1910, he began another action for the plaintiff herein against the defendant under the employer’s liability act for damages for personal injuries, both actions arising out of the same transaction.

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

[1, 2] It has been held that the employer’s liability act gives a new cause of action. Uss v. Crane Co., 138 App. Div. 256, 123 N. Y. Supp. *15194. 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, 68 N. Y. Supp. 945; Sprague v. Bartholdi Hotel Co., 68 Hun, 555, 22 N. Y. Supp. 1090.

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 $10 costs and disbursements, and motion granted.