The plaintiff, a nonresident of the state, on commencing an action against the defendants, was compelled to file security for costs. The action was tried, and resulted in a judgment for the defendants. Prom this judgment the plaintiff appealed, and filed security on the appeal. The defendants commenced an action against the plaintiff and his surety, in a district, court of the city of Hew York, upon the bond given as security for costs, and this action is brought to obtain an injunction against the prosecution of that action until the appeal shall be decided. In the second action the defendants moved to stay the proceedings on the judgment in the district court recovered upon the bond given in that action for security for costs. The motion to dissolve the injunction was granted, and the motion for the order to stay was denied, and the plaintiff appealed.
The costs, which are the subject of controversy on these motions, were not payable and could not be collected after the security on the appeal was perfected, until that appeal was decided. The defendants should not be allowed to collect on the bond given as security for costs, moneys which he is not allowed to collect directly by execution. The difficulty arises from the action on the bond being brought in a district court, where relief cannot be granted unless the appeal can be pleaded as a defense to the action on the bond.
The plaintiff might have moved in the original action, before a judgment was recovered on the bond, for an order staying any action on the same until the decision of the appeal. As the parties were still suitors in this court, where the bond was given, and the bond was on file with the clerk of the court, such an order would have been binding on the *318defendants, and obedience to it could have been compelled! Instead of making this application, the plaintiff went to the district court and tried the cause there, and after a decision against him he seeks the aid of the court by way of injunction, in this suit. The remedy was as before intimated. It is not necessary now to commence one action to stay proceedings in another. And where a party has a remedy, which he neglects to apply for until it is too late to obtain the relief he wants, he should not afterwards, without any excuse for his delay in the first instance, be allowed to resort to a new action for that purpose.
[New York General Term, September 15, 1862.The second motion appealed from is for a stay of proceedings on the judgment in the district court. By the recovery of judgment there, the case is beyond the reach of this court. We have no control over the judgments of the district courts. An order to stay proceedings on a judgment there would be inoperative. The court might order the bond to be canceled, but that would not affect the judgment recovered upon it in another court. The motion for relief in this court is too late. As the plaintiff has pleaded the matter in the action in the district court, and appealed to the common pleas, in that case, it is unnecessary for us to express any opinion on the sufficiency of the defense. The common pleas is the appropriate tribunal to decide that question.
We think neither of the remedies sought by the plaintiff was appropriate or proper, and that the decisions appealed from were correct and should be affirmed.' We allow costs on one appeal, $10.
Ingraham, Barnard. and Clerke, Justices.]