William C. Hecht, Jr., J. Motion for an order staying any further prosecution of this action by plaintiff until plaintiff pays the costs awarded defendant in the prior action between the parties on the same cause, which was discontinued, is denied. Plaintiff is a recipient of welfare from the City of New York, and her inability to pay the costs awarded is apparent. While, in the past, such financial inability has often been held an insufficient excuse to avoid a stay, these cases were decided under the then effective
section 1520 of the Civil Practice Act, or its terms mandated such a stay. (See Wilner v. Independent Order Ahawas Israel, 122 App. Div. 615; McDevitt v. Hyat, 185 App. Div. 370; 23 Carmody-Wait, New York Practice, p. 352, § 307; cf. CPLR 5101, 8106, 8401.) Under the facts presented (the defendant’s financial inability to pay the costs coupled with the circumstances surrounding the discontinuance of the prior action), the exercise of the court’s discretion, in allowing the maintenance of this action, is warranted.