Hungarian General Credit-Bank v. Titus — 175 A.D. 507

Majority

p. 507

Hungarian General Credit-Bank, Respondent, v. Edward H. Titus, Appellant.

First Department,

December 8, 1916.

Headnote

Costs —security for costs — time of making application — laches.

Under section 3272 of the Code of Civil Procedure, as amended in 1915, an application to compel a foreign corporation to give security for costs may be made “ at any time.”

Such an application should not be denied on the ground of laches because the order therein was not made until nearly six months after the commencement of the action.

Appeal by the defendant, Edward H. Titus, 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 19th day of September, 1916, vacating and setting aside an order directing plaintiff to give security for costs.

Louis W. Severy, for the appellant.

Morris Cukor, for the respondent.

The action was commenced in March, 1916, and the amended answer served upon May thirteenth of that year. On May seventeenth the plaintiff noticed the case for trial for the June term. The defendant served his notice of trial on May twentieth. On. July nineteenth the defendant moved to serve a supplemental answer, which motion was granted on July twenty-fifth, and the supplemental answer served on August 4, 1916. On September 19, 1916, an order was made requiring the plaintiff to give security for costs. From a subsequent order vacating this order this appeal has been taken.

p. 508

The sole question raised is whether the defendant has lost his right to security by his delay. Whatever may have been the rule prior to the amendment of 1915 of section 3272 of the Code of Civil Procedure, that amendment authorized the application to be made “at any time.” (Laws of 1915, chap. 635.) The Code as it now reads, therefore, would seem to be authority for the granting of this motion at the time it was granted, inasmuch as the plaintiff is a foreign corporation.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, without costs.

Clarke, P. J., Scott, Page and Davis, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, without costs. Order to be settled on notice.