Herbert v. Drake

The plaintiff brought suit in the supreme court against the defendant on the same cause of action involved here, and judgments for costs were recovered on demurrer against the plaintiff, aggregating $120.45 in each case. The plaintiff thereupon brought the. present suits in this court, on the same cause of action, and the defendant applies foi’ a stay of all proceedings in these actions until- the costs of the former actions in the supreme court are paid. Ordinarily, the motions would be granted as of course. But the plaintiff brought the present actions in forma paziperis, and this feature presents the question to be decided. Daniels (1 Ch. Pr. 39) says: “ It seems doubtful whether, after a dismissal of a former suit, a plaintiff will be permitted to sue again for the same matter in forma pauperis without paying the *176costs of the first suit.” But all doubt as to the practice is removed by section 461 of the Code, which provides that the plaintiff “ shall not be prevented from prosecuting the same by reason of his being liable for the costs of a former action brought by him against the same defendant.” In Lyons v. Murat (4 Abb. N. C. 13), relied on by the defendant, the costs were incurred in the same action prior to the leave to sue informa pauperis, and, on the ground that the order did not relate back to the commencement of the suit, the action was stayed until such costs were paid-That exceptional case does not apply to the present actions, which come within the express provision of section 461 (supra,), which controls. Application denied ; no costs.