Fabrik Schiller'scher Verschluesse Actien Gesellschaft v. Nease

Majority

p. 379

Fabrik Schiller’scher Verschluesse Actien Gesellschaft, Appellant, v. David A. Nease, Respondent.

First Department,

February 8, 1907.

Headnote

Practice — security for costs by foreign plaintiff—granting security in discretion of court after service of answer.

A defendant waives his absolute right to require a non-resident plaintiff to give security for costs unless the motion therefor be made before answer. After the defendant has answered the granting of security for costs is in the discretion of the court, and the burden is on the defendant to excuse- his failure to apply for security, before answer.

Vague and general allegations of pressing and important business of defendant’s attorney do not show an adequate excuse.

Appeal by the plaintiff, Fabrik Schiller’scher Verschluesse Actien Gesellschaft, from an order of the Supreme Court, made at

p. 380

the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of January 1907, denying the plaintiff’s motion to vacate an order compelling the said plaintiff to give security for costs..

Woolsey A..Shepard,-for the appellant.

. Robert H. Strahan, for the respondent.

The action was begun by the service of a complaint on August 30, 1906.

An. answer was served on October 8, 1906. The complaint alleged that plaintiff was a foreign corporation, as indeed its name indicated. 0,n December .22, 1906, the defendant obtained an ex 'parte order requiring the plaintiff to give security for costs and staying its proceedings until such security was given. It is settled by abundant authority in this department.that a defendant waives his absolute right to require a non-resident plaintiff to give security for costs unless the order therefor is applied for' before answer. Thereafter such 'an order becomes a matter„of discretion, and will not, as a-rule, be granted unless the defendant offers some reasonable excuse for not applying earlier for the order, or shows some reason other than the mere fact of non-residence why the order should be granted. In the present case nothing is shown to justify the exercise of the court’s discretionary power in defendant’s behalf.

The only excuse given for the delay in applying for the order is the very vague and general one of pressing and important business which crowded the matter out of the mind of the defendant’s attorney. This is obviously insufficient.

The order denying plaintiff’s-motion to vacate the order requiring the plaintiff to give security for costs will be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Present — Patterson, P. J., Ingraham, Laughlin, Clarke and Soott, JJ,

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