Hyperlawhypertext legal database Craig v. W. & G. Du Cros, Ltd. 117 N.Y.S. 384

← Cases

Craig v. W. & G. Du Cros, Ltd.

117 N.Y.S. 384 Court N.Y. Sup. Ct. Decision date 1909-06-15 English

Delivered by GIEGERICH, J.

Contents

Majority

p. 384
(63 Misc. Rep. 524.)
CRAIG v. W. & G. DU CROS, Limited.
(Supreme Court, Special Term, New York County.
June 15, 1909.)

Headnote

1. Costs (§ 110[1] )—Security from Nonresident Plaintiff—Rights of Nonresident Defendant.
Inasmuch as Code Civ. Proc. § 3268, requiring security for costs from nonresident plaintiffs, does not limit the right to require security to resident defendants, the court has no power to impose such a limitation in the case of a defendant foreign corporation applying therefor.
[Ed. Note.—For other cases, see Costs, Dec. Dig..§ 110.[1] ]
2. Costs (§ 110[1] ) — Security from Nonresident Plaintiff — Discretion of Court.
The security for costs in the case of a nonresident plaintiff, provided for by Code Civ. Proc. § 3268, belongs.to defendant as a matter of right, and does not depend on the discretion of the court.
[Ed. Note.—For other cases, see Costs, Dec. Dig. § 110.[1] ]
Action by Alvin M. Craig against W. & G. Du Cros, Limited. On motion to require plaintiff to give security for costs.
Granted.
Max D. Josephsen, for the motion.
Slade, Slade & Slade, opposed.

Thé defendant moves for an order requiring the plaintiff, who is a nonresident, to give security for costs. The motion is opposed on the ground that the defendant is itself a nonresident, being a foreign corporation. The Code, however, has not limited the

p. 385
right to require such security to resident defendants (§ 3268), and this court has no power to impose such a limitation. The security provided by section 3268 belongs to a defendant as a matter of right, and in no wise depends upon the discretion of the court. The language of the Court of Appeals implying a distinction between resident and nonresident defendants, and upon which the plaintiff relies (Banes v. Rainey, 192 N. Y. 286 , 294, 85 N. E. 71 ), was used with reference to other portions of the Code of Civil Procedure, under which it is discretionary with the court to grant such security.

Motion granted, with $10 costs.

Cases cited