Flewelling v. Brandon

By the Court.*—Larremore, J.

—It is admitted by the record that on the day this action was commenced, a previous action for the same subject-matter was discontinued with costs, which have not been paid.

*334It was insisted on the argument that the present action was prematurely brought, on the ground that the costs of the former action not having been paid, said action was still pending. Such an objection has been held to be valid, as applied to suits in courts of record (Averill v. Patterson, 10 N. Y. 500, and cases there cited), but would not be sustained in a court of a justice of the peace…