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Donnelly v. Third Avenue Railroad

112 A.D. 648 Court First Department, Decision date 1906-04-20 English

Delivered by Laughlin, J.:

Contents

Majority

p. 648
Michael Donnelly, Respondent, v. Third Avenue Railroad Company, Appellant.
First Department,
April 20, 1906.

Headnote

Practice — security for costs by bankrupt — when no laches by defendant.
An order requiring a plaintiff who has become bankrupt after the joinder of issues to give security for costs should not be vacated on the ground of laches by the defendant in discovering the bankruptcy.
Appeal by the defendant, the Third Avenue Railroad Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of February, 1906, vacating and setting aside an order made under section 3269, subdivision 2, of the Code of Civil Procedure, entered in said clerk’s office on the 16th day of November, 1905, requiring the plaintiff to give security for costs.
Bayard H. Ames, for the appellant.
D. O. L. Colahan, for the respondent.

The order requiring security for costs was granted upon the ground that since the commencement of the action and after issues joined therein, and after the cause was placed upon the calendar, the plaintiff was duly adjudged a bankrupt. The order vacating. the order requiring security for costs appears to have been granted upon the ground of laches. We fad to find in the record any evidence of laches. It does not appear when the plaintiff became a bankrupt or when the' defendant became aware of such bankruptcy. Surely, where the bankruptcy occurs' after issue joined, there can be no duty of active vigilance on the part of the defendant to discover it, and the defendant is not obliged to show. affirmatively on a motion of this kind diligence in discovering the bankruptcy occurring after joinder of issue, which is the basis of the motion.

It follows, therefore, that the order should be reversed, with ten

p. 649
dollars costs and disbursements, and the motion denied, with tea dollars costs.

O’Brien, P. J., Patterson, Ingraham and Clarke, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order filed.