Scandinavian American Bank v. Lentzy — 30 A.D. 485

Majority

p. 485

Scandinavian American Bank, Respondent, v. James T. Lentzy, Appellant, Impleaded with Charles Fremont Fishback.

Headnote

Security for costs by a non-resident — delay in applying to compel the giving of it, when not a reason for refusing the application.

The fact that a defendant has obtained extensions of time to answer, covering a period of some seven months, pending a consideration by the plaintiff of the defendant’s demand that a release be given him as a condition of his consent to a withdrawal of the complaint, does not constitute a bar to an application made before service of the answer to compel the plaintiff, a foreign corporation, to give security for the costs of the action.

Appeal by the defendant, James T. Lentzy, 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 lltli .day of April, 1898, vacating an order requiring the plaintiff to file security for costs.

David Calman, for the appellant.

John Hill Morgan, for the respondent.

The defendant was clearly entitled to security for costs. The complaint alleges that the plaintiff is a foreign corporation. The defendant moved before answer, and his practice was entirely regular. The ground upon which his order was vacated was that he had failed to show a sufficient cause for his delay in moving. He had,. it seems, obtained extensions of time to answer covering a period of some seven months. It appears, however, without contradiction that almost as soon as the complaint was served the plaintiff desired to withdraw it. The defendant refused to consent to such withdrawal unless a release ivere given him. This was in June, 1897, and he was unable, during the ensuing vacation, to obtain from the plaintiff a definite answer upon the subject. The attorney who was in charge of the plaintiff’s case was absent or out of town, and for one reason or another a reply as to the release could not be obtained.

Laches cannot be predicated of a delay thus caused by negotiations for a discontinuance. When the defendant found that he

p. 486

must answer, he promptly moved for security. His right thereto was absolute, and lie has clearly not forfeited that right by obtaining time to answer while negotiations for a withdrawal of the complaint were pending.

The order appealed from should be reversed, with ten dollars costs and disbursements, and-the motion to vacate denied, with ten dollars costs.

Rumsey, Ingraham and McLaughlin, JJ., concurred.

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