The rule is well established that non-payment of costs in an action entitles a defendant in whose favor they are awarded to stay all proceedings in a subsequent action brought by the same plaintiff upon the same cause of action. (Wilner v. Independent Order Ahawas Israel, 122 App. Div. 615; Simms v. Carter & Weekes Stevedoring Co., 169 id. 582; Singer v. Garlick, 123 id. 282.)
The record discloses no special facts which take the present case out of the above-mentioned rule. The alleged inability of the guardian to pay the costs does not constitute an excuse for refusing to stay the present action. (McDevitt v. Hyatt, 185 App. Div. 370; Wilner v. Independent Order Ahawas Israel, 122 id. 615.) It must be borne in mind that the present guardian was not entitled to be appointed as such unless she was of sufficient ability to answer for any damage which might be sustained by her negligence or misconduct. (Rules Civ. Prac., rule 40, subd. 3.) She was required to state facts showing such ability in an affidavit before she was appointed, and we may assume that she complied with the rule, or that she would never have received her appointment. Neither does the fact that the plaintiff is an infant take the case out of the general rule. (Thater v. Margrey, 242 App. Div. 31.)
Plaintiff made no attempt to sue as a poor person, pursuant to the provisions of section 196 of the Civil Practice Act.
For the reasons stated we feel that defendant’s motion should have been granted, and that the order appealed from should be reversed.
All concur, Lewis, J., not voting. Present — Sears, P. J., Taylor, Edgcomb, Crosby and Lewis, JJ.
Order reversed, without costs, and motion granted, without costs.