Worman v. Frankish — 11 N.Y.S. 351

Majority

p. 351

Worman v. Frankish et al.

(City Court of New York, General Term.

June 9, 1890.)

Headnote

Costs—Security—N on-Residence.

An application to require plaintiff to give security for costs on the ground of non-residence was denied by one justice on a full hearing. Another application on the same ground, but on additional proof, was granted by another justice. Held, that defendants should have applied to the former justice for leave to renew the original motion, and that the second order was properly vacated on the ground that the matter had been adjudicated by the first order.

Appeal from special term.

Action by John S. Worman against Joseph Frankish and others. From an order of Mr. Justice Giegerich vacating an order previously made by said justice requiring plaintiff to give costs, defendants appeal.

p. 352

Argued before McAdam, C. J., and McGown and Fitzsimons, JJ.

Johnston & Johnston, for appellants. Theal & Bean, for respondents.

The point upon which the order requiring security for costs was vacated, was that the matter had been theretofore decided by Mr. Justice Van Wyck adversely to the defendants. This decision was on the merits, and after a full hearing. True, the new application was on additional proofs, _ but the ground of the application was the same, viz., the non-residence of the plaintiff. The defendants ought to have applied to Justice Van Wyck for leave to renew the motion. To allow motions to be reheard without permission might lead to uncertainty and to conflict of decision, results which should not be encouraged. Upon the entire record and on the theory of res adjudieata, and without expressing any opinion on the facts now disclosed, we have concluded to affirm the order appealed from, without costs. All concur.