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United States v. Bangs

118 N.Y.S. 936 Court N.Y. App. Div. Decision date 1909-10-12 English

Delivered by BURR, J.

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UNITED STATES, to Use of COLLINS, v. BANGS et al.
(Supreme Court, Appellate Division, Second Department,
October 12, 1909.)

Headnote

1. Costs (§ 136[2] )—Security—Waives of Right—Delay in Demanding.
The right to demand security for costs may be waived by failure to move therefor promptly, and. where defendants knew all the facts when the action was brought which éntitled them to demand security but serv
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ed their answers and the case was set for trial before they moved for security they waived their right to require security.
[Ed. Note.—For other cases, see Costs, Cent. Dig. § 533; Dec. Dig. § 136.[2] ]
2. Appeal and Ebrob (§ 984[2] )—Discretion of Trial Court—Requiring Security for Costs.
Where there were no circumstances justifying the trial court in exercising its discretion by requiring security for costs of plaintiff, after defendants had waived their right to security by failure to move therefor promptly, the order requiring such security is reviewable.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3815; Dec. Dig. § 984.[2] ]
Hirschberg, P. J., dissenting.
Appeal from Special Term, Kings County.
Action by the United States, to use of Henry Collins, against Anson M. Bangs, sole surviving partner of the firm of Hughes Bros. & Bangs, and another. From orders granting motions of defendants for security for costs, plaintiff appeals.
Reversed.
Argued before HIRSCHBERG, P. J., and GAYNOR, BURR, RICH, and MILLER, JJ.
Henry B. Hammond, for appellant.
Park L. Woodward, for respondents.

The firm of Hughes Bros. & Bangs, of which the defendant Anson M. Bangs is the surviving partner, entered into a contract with the United States government to dredge Bay Ridge channel and Red Hook channel in New York Harbor. Pursuant to the provisions of an act of Congress passed August 13, 1894 (Act Aug. 13, 1894, c. 280, 28 Stat. 278 [U. S. Comp. St. 1901, p. 2523]), they gave a bond upon which the defendant the United States Fidelity & Guaranty Company was a surety, conditioned for the making of prompt payment to all persons supplying to them labor or materials in the prosecution of the work. The act further provided that any such person to whom payment had not been made should have a right of action and be authorized to bring suit in the name of.the United States against the contractor and his sureties, and that the court in which the action is brought might require security for costs in case judgment is for the defendant. This action was brought under the provisions of said act oh the 12th day of November, 1908. Issue was joined by service of the answer of the defendant Bangs on December 18, 1908, and the áriswer of the defendant United States Fidelity & Guaranty Company on January 12, 1909. The case was noticed for trial for the February term, and was actually set down to be tried on March 9th. On the 2d day of March, orders to show cause were obtained, returnable March 4th, why the plaintiff should not give security for costs. From the orders granting the motions, this appeal is taken.

The only question to be considered is whether the defendants have waived their right to demand such security. The practice seems to be settled in this department and in the . First Department that, even

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when the right to security for costs is absolute, that right may be waiv•ed by failing to move promptly, and that failure to require such security before serving the answer will, in the absence of a valid excuse for delay, be such laches as will amount to a waiver. Buckley v. Gutta Percha Rubber, etc., Mfg. Co., 3 Civ. Proc. R. 428; Turell v. Erie Railroad Co., 46 App. Div. 296 , 61 N. Y. Supp. 308 ; Henderson, Hull & Co. v. McNally, 33 App. Div. 132 , 53 N. Y. Supp. 351 ; Fabrik S. V. A. G. v. Nease, 117 App. Div. 379 , 102 N. Y. Supp. 672 . In this -case the defendants knew, as soon as the action was brought, all of the facts which entitled them to demand security. They not only served their answers,, but the case was noticed for trial and actually set down for trial before the motion was made. The motion was too late. No excuse was offered for the delay. There was therefore nothing to call upon the court at Special Term to exercise its discretion favorably to ■the defendants, and its action is reviewable here. Hagar v. Radam Microbe Killer Co., 119 App. Div. 839 , 104 N. Y. Supp. 896 .

• The orders appealed from should be reversed, with $10 costs and -disbursements.

Order reversed, with $10 costs and disbursements, and motion denied, with -costs. All concur, except HiltSCI-IBERG, P. J., who dissents.

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