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Di Stefano v. Peekskill Lighting & Railroad

149 A.D. 745 Court Second Department, Decision date 1912-03-08 English

Delivered by Hirschberg, J.:

Contents

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p. 745
Martino Di Stefano, Respondent, v. Peekskill Lighting and Railroad Company, Appellant.
Second Department,
March 8, 1912.

Headnote

Practice—security for costs—removal of plaintiff from State—laches —amount of security.
Where, at the time of the commencement of an action for negligence, the plaintiff resided in the county of Westchester, hut pending an appeal from a judgment of nonsuit resulting in a new trial returned to Italy, an application by the defendant’s attorney, upon hearing that plaintiff was about to return to this State after a period of six years, for an order requiring him to give security for the costs on the ground that he had ceased to be a resident of the State should not be denied on the ground of laches, it having been substantially agreed between the attorneys that the matter should remain dormant until the plaintiff returned.
An order requiring security for costs in an amount double that authorized by sections 3272 and 3273 of the Code of Civil Procedure is irregular and should be reversed.
Appeal by the defendant, the Peekskill Lighting and Eailroad Company, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 18th day of October, 1911, vacating an order requiring the plaintiff to give security for costs.
Nathan P. Bushnell, for the appellant.
Frank L. Young, for the respondent.

The action is for negligence, brought by a servant in the employ of the defendant. At the time of the commencement of the action the plaintiff was a resident of the county of Westchester, where the venue is laid. The case was tried on the 9th day of March, 1904, and resulted in a nonsuit. On appeal to this court the judgment was reversed and a new trial granted. (See Di Stefeno v. Peekskill Lighting & R. R. Co., 107 App. Div. 293 .) Before that decision was rendered the plaintiff left the State of New York and returned to Italy, the place of his nativity. The plaintiff’s attorney learned of his client’s departure in the fall of 1905, and promptly notified the

p. 746
attorney for the defendant of the fact. Since that time nothing has been done by either side in the suit, it being substantially agreed between them that the matter should remain dormant until the plaintiff returned to this State. Plaintiff’s attorney learned in August, 1911, that the plaintiff was about to return to this State, and he thereupon communicated with the defendant’s attorney informing him of that fact. The defendant thereupon procured an ex parte order requiring the plaintiff to pay into court the sum of $500 as security for the costs in the action, or at his election to file an undertaking in the same amount. On motion of the plaintiff and on affidavits stating fully the history of the litigation as herein set forth, the order appealed from was granted by the same learned justice who made the ex parte order vacating the latter order.

The main ground asserted in support of the order appealed from is that the defendant was guilty of laches in the long delay, and thereby lost all right to require security.- The authorities are numerous in support of the proposition that an application for security must be made promptly. I do not think, however, that the rule can be made to apply in strictness where the delay is the result of a mutual understanding between the parties. (See Cooke v. Metropolitan Street R. Co., 59 App. Div. 154 .) This view would lead to a reversal of the order but for the fact that the original order requiring the security was irregular in that the amount required was double that authorized by the Code of Civil Procedure (§§ 3272, 3273). Those sections provide that the amount directed to be paid into court shall be the sum of $250 only and that the undertaking in lieu thereof shall be conditioned in a sum of at least that amount, the maximum amount to be obviously in the discretion of the court.

In view of the irregularity of the order vacated the order appealed from should be affirmed, without costs, but without prejudice to a timely renewal of the application for security on notice.

Jenks, P. J., Burr, Thomas and Carr, JJ., concurred.

Order affirmed, without costs, but without prejudice to a timely renewal of the application for security on notice.

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