Hames v. Judd — 16 Daly (N.Y.) 110

Majority

p. 110

John J. Hames et al., Respondents, against John R. Judd, Appellant.

(Decided April 7th, 1890.)

Headnote

An action commenced in a district court and removed to the Court of Common Pleas is not an action “brought” in a court of record, within the meaning of section 3268 of the Code of Civil Procedure, allowing defendant to require security for costs from a non-resident plaintiff.

But while defendant cannot require security for costs, the court may require it, under section 889 of the Code, as a condition of allowing plaintiff a commission to take testimony abroad; and such a condition is reasonable where plaintiffs have delayed their application without apparent cause, and their recovery is doubtful.

Appeal from part of an order of this court.

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The action was originally brought in a district court by the plaintiffs, who were non-residents, to recover for goods sold and delivered, but was removed to this ■ court. After the removal, defendants moved to require plaintiffs to file security for costs. On the hearing of the motion at Special Term, the following opinion was delivered.

This application is made under the general provision of the Code, § 3268, relating to security for costs'. It provides that defendant may require such security “ in an action brought in a court of record,” and it is contended by this defendant that an action removed into this court is an action “ brought ” in this court. I cannot agree in such a construction of the statute. The word “ brought,” in the section in question, signifies “begun” or “commenced.” The phrase “ to bring an action ” has a settled, customary, legal, as well as general, meaning, and refers to the initiation of legal proceedings in the suit. The fact that the word “ commenced ” is used in the section of the Code, as applied to the beginning of the action, does not conflict with this view,since the two expressions “ brought ” and “commenced” mean the same thing. The word “ brought ” has never been used as synonymous with •“ removed ” in cases of removals of actions from one court to another. On the contrarjr, in the sections of the Code reláting to such .removal, the word “ brought ” is applied to the commencement of the action in the court from which it is removed (Code §§ 319, 343). The legislators evidently intended that a plaintiff who brought his action in a court not of record, where such court had jurisdiction, should not be required to give security for costs. The object of the legislation is plain enough; it is to encourage resort to the inferior courts in matters of which they have jurisdiction; and the defendant, by removing the cause into a court of record, cannot deprive the plaintiff of the immunity which he has gained by resorting in the first instance to the favored tribunal. The cases cited by the defendant, as to the status of an action after its removal to

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this court, have no application, as this motion is made upon a special statutory provision.

Motion denied, with $10 costs.

Plaintiffs afterwards moved for a commission to take testimony abroad, and the motion was granted, on terms that they should give security for defendant’s costs of the action. From so much of the order as imposed on them, as terms, the giving of such security, plaintiffs appealed.

Smith & White, for appellants.

J. O. O' Conor, Jr., for respondent.

J. F. Daly, J.—Usually the granting of a commission is a matter of course, the discretion of the court being exercised with respect to staying proceedings ; but the Code now expressly authorizes the court to impose terms (§ 889). In this case the plaintiffs (who are non-residents) are required to give security for defendant’s costs of the action as a condition of allowing them a commission to take testimony abroad. The case having been originally brought in a district court and removed to this court, the defendant had no right to require security for costs (see Special Term decision in this case); but there can be-no doubt of the power of the court to require such security, as terms upon the allowance of a commission, if the circumstances of the case are such that justice requires it—to quote the language of section 889.

In this case it appears that the plaintiffs have, without apparent cause, delayed their application for a commission ; and it also appears that a recovery upon their present alleged cause of action may be doubtful. It seems, from the affidavit of Mr. Peabody, managing clerk for defendant’s attorney, that in October, 1889, plaintiffs’ attorneys asked his consent to an amendment of the complaint substituting another cause of action, upon which, as they stated, they thought they would be more likely to recover. If there seems a prospect of defendant’s succeeding, and he is required by the issuance of

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a commission to suffer delay, or to incur additional expenso and his judgment for,costs could not be collected by execution, as plaintiffs are non-residents, it does not seem unreasonable to require security for such costs from plaintiff when he asks for the commission.

The order appealed from should be in all things affirmed, with $10 costs and disbursements.

Larremore, Ch. J., concurred.

Order affirmed, with costs.