Sprague v. Bartholdi Hotel Co.

For the reasons given in the opinion of the court below upon the decision of the motion resulting in the order appealed from, we think the order was right, and should be affirmed, with ten dollars costs and disbursements.

The said opinion of the court below (Patterson, J.) is as follows :

“ This motion is one which should be granted. The simple statement of the case is that this plaintiff (Sprague) sued in the Superior Court to recover damages for the breach of a contract which he alleged to exist, and upon the establishment of which he would have been entitled to a recovery. That was an alleged oral contract, and the plaintiff was defeated, and judgment was rendered against him, which was affirmed, and a large bill of taxed costs accrued against him. He has now brought another action in this court in which he seeks to reform a certain alleged written contract by inserting therein matters which would create a liability (and they are substantially the same matters as those litigated in the other action), and after reforming the contracts, to recover damages for the breach thereof as reformed. All this matter of what the parties had agi'eed upon Avas evidently (in substance) gone over in the action in' the Superior Court, and the present suit seems to he a mere attempt by a change of the scheme of the action, and the form in Aidiich it-is instituted, to accomplish a result Avhich has heretofore been attainable. Under such circumstances the rule of Lav is plain as effecting this motion, and that is, AAdiere a second action is A'exatiously brought, the court will stay it until the costs of that prior action are paid. It is true that under the old practice a court of equity never required the payment of costs in an action of laiv Avhich involved the same subject-matter as a condition of prosecution of a *557suit in equity unless the suit was brought to vex the defendants. The books are full of cases on that point, but here, it seems to me, the case presented is of that character and clearly demands that the motion should be granted, with ten dollars costs. Order to be settled on two days’ notice.”

Order affirmed, with ten dollars costs and disbursements.