It is the settled rule and practice in this State, asserted in numerous cases, that where one action is discontinued or dismissed with costs, and a second action is brought for the same cause of action by the same plaintiff, or by any assignee of the cause of action, that the proceedings in such second action will be stayed till-the costs of the first action are paid. And it matters not that the first action was dismissed for a defect of parties or other causes, and the bringing in of other parties as defendants in the second suit does not change the rule.
This was settled in the case of Kentish v. Tatham, 6 Hill, 372. In that case the first action was against two defendants. The plaintiff was nonsuited and judgment obtained against him for costs for a non-joinder of parties. He then commenced the second action against one of the defendants in the first action and two other parties, as defendants. On motion to stay proceedings till the costs of the former action were paid, the same was granted. Judge Bronson, on the decision of it, saying: “Benjamin Tatham is sued a second time upon the same demand or cause of action, and we think the proceedings should be stayed until the costs of first suit are paid. The fact that some of the defendants are new parties does not take the case out of the operation of the general rule.” ■
That case was the same in principle with this, and the same rule should be applied in this action. Lydia Grant was a defendant in the former action as well as in this, and I think there is the more justice in this rule in this case, in the fact that the plaintiff in the first action is a non-resident, and the defendant Lydia Grant has no *469remedy in this State, at least, for'the collection of her costs.
The order of the special term staying proceedings in the suit, so far as relates to the said defendant Lydia Grant, and allowing the action to proceed as to the other defendants, does but imperfect justice. If she is a necessary and proper party in the action, Mrs. Grant ought not to be thus placed in the false position that she must either waive her rights to costs in the former suit, or acquiesce in the prosecution of this suit, and in a decision, perhaps, upon her rights, without the opportunity to be heard in respect to the questions.
It is not just to let a suit proceed as against some of the parties while it is stayed as to the others. A party to an action has the right to appear and participate in all the proceedings in the cause, if he is not bound to do so to protect his own interest. He may not lie by, and in many cases he cannot safely, and suffer a suit to proceed against other parties when his own interest is involved and may be affected by the result of the litigation. The case of Garnsey v. Knight, 1 N. Y. Sup. 259, illustrates the peril involved by such a course.
The order of the special term should be reversed, so far as it allows the action to proceed as against the said Mary Day, and the original motion to stay the proceedings till the costs of the former be paid be granted, with $10 costs of such motion, and $10 costs of this appeal to this court.
So ordered.