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Cooke v. Metropolitan Street Railway Co.

59 A.D. 154 Court N.Y. App. Div. English

Delivered by Jenks, J.:

Contents

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p. 154
James Cooke, Jr., an Infant, by James Cooke, his Guardian ad Litem, Respondent, v. Metropolitan Street Railway Company, Appellant.

Headnote

Security for costs — what delay in applying foi' it does not constitute laches.
Where an action to recover damages for personal injuries is begun by the service of the summons, and the complaint is not served until after the plaintiff has: received seven successive extensions of time, aggregating one hundred and fifteen days, an order procured by the defendant, before answering and before the expiration of the twenty' days within which it might answer, requiring the plaintiff to file security for costs, should not be vacated on the ground of laches.
Appeal by the defendant, the Metropolitan Street Railway Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of' the clerk of the county of Kings on the 28th day of November, 1900, vacating an order theretofore made requiring the plaintiff to give security for costs.
Henry A. Robinson [Charles F. Brown with him on the brief], for the appellant.
Carl Fischer-Hansen, for the respondent.

This order must be reversed. The action in which it' is. made is ■brought to recover damages for personal injuries. It was begun by service of summons on June 30, 1900. Thereafter the plaintiff received •from the defendant seven successive extensions affording him one hundred and fifteen days to serve the complaint. The complaint was served and before the expiration of the twenty days within which defendant might answer, and before answering, the defendant obtained an order exponte requiring plaintiff to file security for costs.. Upon motion and notice, the Special Term subsequently, vacated said order for laches, and from the order of vacation this appeal is taken. The order was the defendant’s absolute right, unless laches precluded it. (Healy v. Twenty-third Street R. Co., 1 Civ. Proc. Rep. 15 ; Morpie v. Manhattan Brass Co., 28 J. & S. 423 ; Churchman v. Merritt, 50 Hun, 270 ; Hand v. Shaw, 13 Misc. Rep. 143 .) In Gedney v. Purdy ( 47 N. Y. 676 ) the Court of Appeals held that the motion

p. 155
might be made at any time, but the trend of more recent authorities is that it must be made promptly, else the motion is addressed to-the sound discretion of the court. While there is no hard and fast rule as to what constitutes laches, yet I am referred to no case where the laches was held sufficient to authorize the denial of the motion where the application was made before even obtaining time to plead in answer. Several cases are cited by the learned counsel for the respondent. In Goodrich v. Pendleton ( 3 Johns. Ch. 520 ) it appeared that the defendant had first put in a plea of the Statute of Limitations, which had been argued and • overruled, and the chancellor said that the defendant waives if he takes any step in the cause or even prays time to answer. In Sims v. Bonner (21 Civ. Proc. Rep. 355) the defendant appeared on January 7, 1890, the time to serve the complaint was extended until May 9,1891, and the defendant’s time to answer was extended until August 1, 1891; while the order to show cause why security should not be filed was obtained on July 24, 1891, and the hearing thereon had on August 7, 1891. In Stevenson v. N. Y., L. E. & W. R. R. Co. ( 49 Hun, 169 ) the action was commenced on November 25, 1881; on the following fourteenth of December the defendant obtained an extension of time, and the answer was served on January 3, 1888, and not until the sixteenth of that month was any application made for the filing of security. In Buckley v. Gutta Percha, etc., Mfg. Co. (3 Civ. Próc. Rep. 431) defendant’s time to answer was twice extended ten days by consent, and three days after the service of the answer the order for the filing of security was obtained ex parte. Carpenter v. Aldrich ( 3 Metc. 58 ) concerned a writ, and a motion made that the action should be dismissed as not properly indorsed was denied because made after the first term. Shaw, Ch. J., said that the provision was made for the benefit of the plaintiff, and, therefore, he might waive it, and if unreasonable in his objection he would be held to waive it. The authority which he cites is that one who might avail himself of a violation of an injunction waived it by pleading to the merits. (Ripley v. Warren, 2 Pick. 592 .) I have now reviewed all the cases cited.

The Appellate Division of the first department has recently held in Johnson v. Metropolitan Street R. Co. ( 57 App. Div. 633 ), where the action was begun on August seventh, the complaint served on

p. 156
September twenty-ninth, defendant’s time to answer extended to October seventeenth for fifteen' days, the order for security procured on October twenty-sixth before answer, and the answer was served, on Octob'er thirtieth, that an order of the Special Term vacating the-order on the ground of laches should be reversed. The case at bar is stronger in that defendant had not obtained even an extension of time to answer. The plaintiff alone is responsible for all delay in the prosecution of the case, and now would turn the grace of the defendant into its fault. From the service of the summons to the service of the complaint nothing was required of the defendant, and its failure to move under the circumstances should not be raised against it. The defendant acted promptly upon service of the complaint, and its first act was to require the security afforded by the-Code of Civil Procedure.

Order reversed, with ten dollars costs and disbursements.

All concurred.

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