Guttilla v. Engel , 158 N.Y.S. 773 ( 1916 )

Guy, J.

Plaintiff appeals from an order granting a

stay herein until payment of costs awarded to defendant on the dismissal of plaintiff’s complaint in a former action between the same parties involving the same cause of action. Subsequently to the entry of judgment dismissing the complaint in the former action, plaintiff obtained an ex parte order granting him leave to sue as a pauper. The fact of the dismissal of the complaint in the former action and the nonpayment of costs awarded to defendant was not brought to the attention of the court in connection with plaintiff’s motion for leave to sue as a pauper; but no motion has since been made by defendant to vacate the order on that ground. While section 125 of the Municipal Court Code provides for a stay, without further direction of the court, until the payment of costs which have been awarded, that section must be read in conjunction with section 461 of the Code of Civil Procedure, which, not being inconsistent with the provisions of the Municipal Court Code, must be deemed a part of the Municipal Court Code (Mun. Ct. Code, § 15). Section 461 specifically provides that a person to whom leave to sue as a pauper is granted “ 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.” This provision of the Code is conclusive on this point. Roberti v. Carlton, 18 How. Pr. 466; Harris v. Mutual Life Ins. Co., 18 N. Y. Civ. Pro. 195; Young v. Nassau Elec. R. R. Co., 34 App. Div. 126.

The order must, therefore, be reversed and the motion denied, without costs of appeal.

Cohalan and Whitakeb, JJ., concur.

Order reversed.