Mills v. Nassau Bank — 123 A.D. 514

Majority

p. 514

Mary Mills, as Executrix, etc., of Robert J. Mills, Deceased, Respondent, v. The Nassau Bank of the City of New York, Appellant.

First Department,

January 24, 1908.

Headnote

Costs — security from, non-resident.

When a plaintiff, suing as executrix, is' a non-resident, and it appears thát there. is no property of the estate in this State subject to execution, the defendant is entitled to security for costs,.

When the non-residence of the' plaintiff did not.appear on the face of the papers and the defendant did not become aware of the ■ fact until the trial', wliiizh, resulted in a dismissal of the complaint, the right to security for future costs •is .not-lost-by lapse of time,-if the defendant moved promptly after the service of the plaintiff’s notice of appeal from the judgment,-

p. 515

Appeal-by the defendant, The Nassau Bank of the City of New York, 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 6th day of Hay, 1907, denying the defendant’s motion for an order compelling the plaintiff to give security for costs.

M. Stearns of counsel [Duer, Strong & Whitehead, attorneys], for the appellant.

M. J. McKenna, for the respondent.

This action was commenced on the 26th day of September, 1904, was brought to recover the sum of $2,201.86 and interest, and was tried on the 22d of June, 1906, judgment being entered on the 26th of February, 1907, in favor of the defendant, dismissing the complaint, with costs. On the 1st of April, 1907, plaintiff served a notice of appeal to the Appellate Division, and on the'16th of April, 1907, the defendant made a motion for an order requiring the plaintiff to give security for costs.

The plaintiff executrix is a non-resident of the State, residing in Ottawa, Canada. There was nothing upon the face of the papers to show such non-residence, and it was not until the trial, when the plaintiff testified to the fact, that the defendant became aware that she was a non-resident.

We do not think, therefore, that the defendant lost its right to move for security by mere lapse of time. ..The judgment having been entered dismissing the complaint, with costs against the plaintiff, as soon as it became evident by the service of the notice of appeal from the judgment that further proceedings were to be taken the defendant moved. It seems to us, as it now appears, that the plaintiff is a non-resident, and as it does not appear that the estate has any property within the State subject to execution, it is proper, the court having entered judgment in its favor, that the defendant should be secured for its future costs before further proceedings are had.

The order appealed from, therefore, should be reversed and the motion granted, so far as to provide for the payment into court of

p. 516

the sum of §250, or an undertaking-in the like sum, as security for costs upon any appeal which may he taken from said judgment, with ten dollars costs and disbursements upon.this appeal. .

Patterson, P. J., Ingrai-iam, Houghton and Scott, JJ7, concurred.

Order reversed, with teti dollars costs and disbursements, and order entered as directed in opinion. Settle order on notice.