Worthington v. Warner — 19 Abb. N. Cas. 266

Majority

p. 266

WORTHINGTON v. WARNER.

N. Y. City Court, Special Term ;

September, 1887.

Headnote

Extension of time to answer without affidavit of merits.] Where a nonresident plaintiff is required, upon defendant’s application, to file-security for costs, the court may properly extend defendant’s time _to answer until a certain number of days after security is filed, without requiring him to make and file an affidavit of merits.

Motion to modify order requiring plaintiff to give security for costs by striking out a provision extending time to-answer, on the ground that no affidavit of merits had been filed.

The motion was based on General Rule 24, providing that “ no order extending a defendant’s time to answer or demur shall be granted, unless the party applying for such order shall present ... an affidavit of merits, or proof that it has been filed,” etc.

William O. Campbell, for the plaintiff, and the motion..

John A. Grow, for the defendant, opposed. s

The plaintiff has been required to file security for costs, and the time of the defendant to answer has been extended a certain number of days after the plaintiff files such security. Both directions are contained in the same order. The plaintiff asks that the order be-modified by striking out the provision extending the time to answer, upon the ground that the defendant has not-sworn to merits.

Until the plaintiff files security for costs, he has no standing in court. The defendant should not be required to make and file an affidavit of merits until the plaintiff'

p. 267

decides whether or not he will put himself in a position to enable him to prosecute his action. The court had the unquestioned authority thus to enlarge the time to answer (Bronson v. Freeman, 8 How. Pr. 492 ).

Motion to modify order heretofore entered denied, but without costs.

Cases cited

Bronson v. Freeman 8 How. Pr. 492 N.Y. Sup. Ct. p. 267