Hyperlawhypertext legal database Crow v. New York Transp. Co. 117 N.Y.S. 947

← Cases

Crow v. New York Transp. Co.

117 N.Y.S. 947 Court N.Y. App. Term Decision date 1909-06-18 English

Decision Majority — LEHMAN, J. · Dissent — DAYTON, J. (dissenting).

Contents
p. 947
CROW v. NEW YORK TRANSP. CO.
(Supreme Court, Appellate Term.
June 18, 1909.)

Headnote

Costs (§ 110[1] )—Security for Costs—Nonresident.
A dock laborer, employed by the hour, whose employment has ceased by reason of the injuries for which he sues, arid Who' has' simply a reasonable expectation of re-employment, because his- name is retained on the list of employes, is not a person having an office where lie regularly transacts business, within Code Civ. Proc. § 3160, providing that a nonresident having such an office in the city of New York,cannot be required to give security for costs in an action' in the City. Court.
FEd. Note.—Por other cases, see Costs, Cent. Dig. §§ 427-438; Dec. Dig. $ 110.[1] ]
Dayton, J., dissenting.
Appeal from City Court of Mew York, Special Term. •
Action by Michael Crow against the Mew York Transportation Company. From an order vacating an order requiring plaintiff to file security for costs, defendant appeals.
Reversed.
p. 948
Argued before DAYTON, SEABURY, and LEHMAN, JJ.
Arthur K. Wing (George S. Wing, of counsel), for appellant.
Bristor & Gray, for respondent.

The plaintiff is a resident of New Jersey, who has brought an action for personal injuries against the defendant. The defendant secured an ex parte order requiring the plaintiff to file security for costs, and now appeals from the order vacating and setting aside this order.

The motion papers disclose that the plaintiff is a dock laborer, who has been employed by the Dominion Steamship Company at Pier 36 for three years, with the exception of nine months during said period; that his name still remains on the roll of employés of said company, and he intends, as soon as he is able to go to work, 'to resume his employment there; that all the business he has is transacted at the docks and in the office of the Old Dominion Steamship Company; and that the said place is considered by him his office for the regular transaction of business in person. The assistant timekeeper of the company makes an affidavit stating that the name of the plaintiff has been retained on the roll of employés of the said company, and he has no doubt but that he will be allowed to resume his old employment as soon as he is able to go to work. The defendant shows in opposition that the plaintiff was a member of the night gang, and that he worked by the hour, receiving 30 cents for the time he was actually employed.

The justice at Special Term vacated the order requiring the giving of security for costs on the ground that the plaintiff had brought himself within section 3160 of the Code of Civil Procedure, relying for his authority on Wycoff v. Devlin, 8 N. Y. Civ. Proc. R. 138 . That case has decided only that a nonresident of the state of New York, who has an office in the city of New York, where he regularly transacts business in person, cannot be required to give security for costs in an action in the City Court. A dock laborer, employed on a wharf by the hour, whose employment had ceased by reason of the injuries for which this action is brought, and who at the time when the summons was served had no employment in the city, but simply a reasonable expectation of re-employment, because his name was still retained on the list of employés, can in no way be described as a person who has an office or place for the regular transaction of business.

The order appealed from must be reversed, with $10 costs and disbursements to the appellant on this appeal, but without costs below.

SEABURY, J., concurs.

An office is a place of business to or from which a man can be traced for the transaction of his business, no matter what his occupation may be. In my opinion, on the facts here, the order was right, and should be affirmed.