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Rothchild v. Wilson

10 N.Y.S. 61 Court N.Y. Sup. Ct. English

Delivered by Lawrence; J.

Contents

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p. 61
Rothchild v. Wilson et al.
(Supreme Court, Special Term, New York, County.
December, 1889.)

Headnote

1. Costs—Security—Defendants Appearing Separately.
Under Code Civil Proc. N. T. § 3373, providing that “the undertaking * * * must be executed to the defendant, ” several defendants cannot appear separately, and require a non-resident plaintiff to give a separate undertaking to secure the costs of each.
2. Same—Undertaking—Piling without Leave of Court.
Where an undertaking to secure costs is regular in all respects except that it was filed without leave of court, and without giving defendants an opportunity to be heard as to the amount thereof, such undertaking will not be approved, but leave will be given to plaintiff to apply for an order to show cause why he should not be permitted to file a sufficient undertaking.
At chambers. Plaintiff being a non-resident, and there being numerous defendants, a motion was made to require plaintiff to furnish separate undertakings to secure each defendant, in lieu of an undertaking given by plaintiff to secure all the defendants.
JETorioitz & Hirshfteld, for plaintiff. Wilder, Wilder & Lynch, for defendant Wilson. Burnett & Whitney, for defendant Lane.

Where the plaintiffs are non-residents, and there are two or more defendants, they cannot appear separately, and each require a bond to him as security for his costs. The statute[1] requires only one bond, which should run to the defendants, and is for the benefit of them all. Leftwick v. Clinton, 26 How. Pr. 26 . That case was decided under the old Code, and counsel have not referred me to any ease which modifies or qualifies that decision.

1 Code Civil Proc. N. Y. § 3273, provides that “the undertaking * * * must be executed to the defendant ” etc.

p. 62
In these cases, it appears that an order was granted ex parte, on the motion of the defendant Wilson, requiring the plaintiff to give an undertaking in the sum of $250, to be applied to the payment of the costs awarded against the plaintiff to the said defendant Peter K. Wilson. That order has not been complied with. The undertaking given on the 12th of October, 1889, being given to all defendants, and, having been excepted to by them as to form and sufficiency, was not in compliance with that order. The undertakings now under consideration were filed voluntarily, without leave of the court, on the 2d of December instant, and are in the sum of $1,000 each, to secure the costs of all the defendants. This undertaking is correct in form, but, having been filed without leave of the court, and without giving the other party an opportunity to be heard as to the amount of the undertaking, I cannot approve o£ the same; but leave will be given to the plaintiff to apply for an order t® show cause why they should not have leave to file an undertaking in the sum of $1,000 to secure the defendants for all costs which may be awarded to them, in the action.

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