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Denison v. Denison

147 N.Y.S. 575 Court N.Y. Sup. Ct. English

Delivered by POUND, J.

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p. 575
DENISON v. DENISON.
(Supreme Court, Special Term, Erie County.
May, 1914.)

Headnote

Costs (§ 112[1] )—Motion to Give Security for Costs—Waiver—Laches.
A delay of one week after answering before application by defendant to require plaintiff, a nonresident to give security for costs, does not amount to a waiver or laches of the right to require security, as authorized by Code Civ. Proc. § 3268.
[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 463-468; Dec. Dig. § 112.*]
Action by Frances I. Denison against Daniel A. Denison, as Executor. On motion to vacate order requiring plaintiff to give security for costs.
Denied.
B. H. Robillard, of Buffalo, for the motion.
Frank A. Abbott, of Buffalo, opposed.

Plaintiff is a nonresident. Answer was served on April 17, and an ex parte order requiring plaintiff to give security for costs was obtained on April 24, 1914. There was no waiver, nor unreasonable delay in applying for the order, unless it is held arbitrarily, as in the First and Second Departments, that the order must be applied for before answer, at peril of losing the right given unqualifiedly to the defendant, where the plaintiff resides out of the state, by Code Civ. Proc. § 3268. U. S. v. Bangs, 134 App. Div. 215 , 118 N. Y. Supp. 936 ; Fabrik, etc., v. Nease, 117 App. Div. 379 , 102 N. Y. Supp. 672 .

I am reluctant to apply that rule, which must be a mere rule of convenience, in this case, and I am impressed by what is said by the court in the Third Department in holding the contrary in Wicker v. Village of Elmira Heights, 42 App. Div. 426 , 59 N. Y. Supp. 130 , viz.:

“It would seem the more reasonable rule that the defendant, by answering, manifest his intention in good faith to defend, before he asks that the plaintiff be made to secure his costs.”

At least I hold that neither waiver nor laches may be predicated solely upon the fact that the defendant in this case waited one week after answering before applying for security for costs.

Motion denied.

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