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Rothschild v. Wilson

24 Abb. N. Cas. 123 Court N. Y. Supreme Court, First District, Chambers; English

Delivered by Lawbence, J.

Contents

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p. 123
ROTHSCHILD v. WILSON.
N. Y. Supreme Court, First District, Chambers;
December, 1889.

Headnote

1. Security for costs ; right of defendants appearing separately to distinct undertakings.] Two or more defendants cannot appear separately, and each require an undertaking from a non-resident plaintiff to secure costs. The statute requires only one bond which should run “ to the defendants,” and is for the benefit of them all.
2. Same; when court will not approve undertaking.] Where the undertaking is correct in form, but has been filed voluntarily without leave of the court, and without giving the other party a right to be heard as to its amount, the court will not, on defendants’ motion for security, approve the same, but leave will be given to plaintiff to apply for leave to file such an undertaking.
Motion for an order requiring undertaking from plaintiff for each defendant pleading.
The plaintiff brought two actions, the first being for the wrongful issuing of an attachment, and the second against indemnitors of. the sheriff upon certain executions. . There were twenty-two defendants in the first action and twenty-eight in the second. The plaintiff, being a non-resident, served an undertaking to secure all the defendants, and this being excepted to, he served another in a larger amount, but in the same form. The defendant Wilson now seeks to
p. 124
require the plaintiff to serve separate undertakings as to each defendant appearing and pleading.
Wilder, Wilder db Lynch, attorneys for the defendant Wilson.
Burnett db Whitney, attorneys for defendant Lane, for the motion.
Horwitz db Hershfield, for plaintiff opposed.

Where the plaintiffs are non-residents and there are two or more defendants, they cannot appear separately and each require a bond to him as security for his costs. The statute requires only one bond which should run “to the defendants” and is for the benefit of them, all (Leftwick v. Clinton, 26 How. Pr. 26 ). That case was decided under the old Code, and counsel have not referred me to any case which-modifies or qualifies that decision. In these cases it appears that an order was granted ex parte on the motion of the defendant Wilson requiring the plaintiff to give an undertaking in the sum of $250, to be applied to the payment of the costs awarded against the plaintiff to the said defendant Peter K. Wilson. That order has not been complied with. The undertaking given on the 12tli of October, 1889, being -given to all of the defendants, and having been excepted to by them as to form and sufficiency, was not in compliance with that order. The undertakings now under consideration were filed voluntarily, without leave of the court, on the 2d of December instant, and are in the sum of $1,000 each, to secure the costs of all the defendants. This undertaking is correct in form, but having been filed without leave of the court, and without giving the other party an opportunity to be heard as to the amount of the undertaking, I cannot approve of the same, but leave will be given to the plaintiff to apply for an order to

p. 125
show cause why they should not have leave to file an undertaking in the sum. of $1,000 to secure the defendants for all costs which may be awarded to them in the action.

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