Cadwell v. Manning — 24 How. Pr. 38

Majority

p. 38

SUPREME COURT.

Cadwell agt. Manning and others.

Headnote

There is no enactment either of the Code or otherwise, changing the practice of obtaining and filing security for costs.

A chamber order, ex parte, containing a peremptory order to file security for costs, and in default thereof to show cause why the complaint should not be dismissed, is irregular.

New York Special Term,

November 5th, 1862.

An order was made in this cause in July, requiring the plaintiff to file security for costs within twenty days, or show cause on the 7 th day of August, 1862, why the complaint should not be dismissed.

F. G. Burnham, for motion.

Ira D. Warren, opposed.

Prior to. the Code, the established practice to be pursued when it was desired to obtain security for costs, was, either to obtain a chamber order, ex parte, directing security to be filed within twenty days, and in the event of security not being filed within twenty days, then requiring cause to be shown at the first special term to be held after the expiration of said twenty days, why security should not be filed, which order contained a stay of proceedings. On the return day of the order, if the security had not been previously filed, the motion for security was heard pursuant to the alternative of the order to show cause ; if the motion was granted, a peremptory order to file security was made. This order operated as a stay

p. 39

of proceedings. If security was not filed within a reasonable time pursuant to the peremptory order, a motion was made for judgment of non pros., or the party desiring security might apply in the first instance to the court on notice to the opposite party, in which event, if the motion was granted, a peremptory order to file security was made in the first instance. The proceeding in case of not filing security pursuant to the peremptory order was then by a motion for a non pros.

There is no enactment, either of the Code or otherwise, changing the practice.

In this case the order is a chamber order, without notice, and is a peremptory order to file security, and in default thereof to show cause why the complaint should not be dismissed.

This motion cannot be granted without introducing a new course of practice. Motion denied, without prejudice to defendants making a further application for security in a different manner.