Majority
p. 432KELLER v. TOWNSEND. N. Y. Supreme Court, First Department; Chambers, October, 1877.
Headnote
Security for Costs.A non-resident plaintiff may be ordered to give security for costs in actions for tort as well as in actions on contract.
The amount may be fixed at over $350.
p. 433
Motion by defendant for security for costs.
Joseph Keller sued Charles H. Townsend, for $10,000 damages for slander.
After the service of the summons and complaint, the defendant, upon affidavits showing the insolvency of the plaintiff, and the existence of unsatisfied judgments against him, and that he was a resident of New Jersey, moved that. he should file a bond for $500, as security for costs.
The motion was opposed, on the ground that an order for security for costs could not be required in an action for tort; that the defendant transacted business in the city of New York, although he resided in New Jersey; and that if the order was granted he should not be required to give more than $250 security.
H. T. Ketcham, for the motion.
Joseph 3. Ridgway, opposed.
Coryell v. Davis ( 5 Hill, 559 ), is inapplicable.[1] That was a case of bankruptcy, not non-residence. In the latter class of cases there is no statutory limitation. Security is consequently required in all actions where the plaintiff is a non-resident. Upon the facts it is a case for a bond in $400.
Ordered accordingly.
* It was there held that a bankrupt suing for a tort was not required to give security merely because he had been discharged in bankruptcy. In other cases it has been held that the power is inherent in the court, and not limited by the language of the statute (Swift v. Collins, 1 Den. 659 ; People v. Oneida, 18 Wend. 652 ; Dyer; v. Dunivan, 3 How. Pr. 135 ).