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Tedeschi v. Bacigalupo

151 N.Y.S. 649 Court Nassau Cty. Ct. English

Delivered by NIEMANN, J.

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TEDESCHI v. BACIGALUPO et al.
(Nassau County Court.
February, 1915.)

Headnote

1. Costs (§ 110[1] ) — Secubity fob Costs — Bight to.
The right of a defendant to security for costs, provided for by Code Civ. Proc. § 3268, subd. 1, in actions begun in the County Court by one residing without the county, save in certain specified counties, is absolute, though it may be waived by loches in moving.
[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 427-438, 444, 448, 449, 456; Dec. Dig. § 110.*]
2. Costs (§ 112*) — Security fob Costs — Laches.
Where defendants’ attorneys, on serving their answer, demanded from plaintiff’s counsel the latter’s address, and they were put off from time to time, the right of defendants to require plaintiff to furnish security for costs was not, under the circumstances, waived, although the motion was not made until after issue was joined.
[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 463-468; Dec. Dig. § 112.*]
3. Costs (§ 112*) — Security for Costs — Discretion of Court.
The court may in its discretion, upon a reasonable excuse for the delay, require security for costs after defendant has served his answer.
Action by Gaetano Tedeschi against Antonio Bacigalupo and Joseph Bacigalupo, doing business as A. Bacigalupo & Son. On motion for security for costs.
Motion granted.
Maxson & Jones, of Hempstead (Henry L. Maxson, of Hempstead, of counsel), for the motion.
Charles J. Ryan, of Brooklyn, opposed.

The defendants move for security for costs. This action was brought to recover $300 damages for the alleged negligent killing of plaintiff’s horse by the defendants’ automobile truck. The ac

p. 650
cident occurred in the borough of Brooklyn. The summons and complaint were served on the defendants on the 21st day of November, 1914, and the defendants’ answer was served on December 9, 1914. The affidavit and notice of motion for an order requiring security for costs were served by the defendants’ attorneys on January 18, 1915.

[1] The motion is made under section 3268, subd. 1, of the Code of Civil Procedure, which provides that if the. action is brought in a County Court, except in the counties of Albany, Kings, Queens, Rensselaer, and Richmond, by a person residing without the county, the defendant may require security for-costs to be given. The right to security is absolute (C. C. P. § 3272), but may be waived through loches in moving. Segal v. Cauldwell, 22 App. Div. 95 , 47 N. Y. Supp. 839 ; Henderson, etc., v. McNalley, 33 App. Div. 132 , 53 N. Y. Supp. 351 ; Johnson v. Met. St. Ry. Co., 56 App. Div. 286 , 67 N. Y. Supp. 855 ; Cooke v. Met. St. R. R. Co., 59 App. Div. 154 , 69 N. Y. Supp. 4 ; Corbett v. Brantingham, 65 App. Div. 335 , 72 N. Y. Supp. 763 ; Kelley v. Kremer, 74 App. Div. 456 , 77 N. Y. Supp. 515 ; Gibbons v. Bush Co., Ltd., 98 App. Div. 283 , 90 N. Y. Supp. 603 ; Bender v. Paulus, 109 App. Div. 149 , 95 N. Y. Supp. 670 ; Fabrik Schiller’scher v. Nease, 117 App. Div. 379 , 102 N. Y. Supp. 672 ; Dwyer v. McLaughlin, 27 Misc. Rep. 187 , 57 N. Y. Supp. 220 ; Dunaway v. Terry, 37 Misc. Rep. 510 , 75 N. Y. Supp. 974 ; Knaggs v. Easton, 54 Misc. Rep. 51 , 104 N. Y. Supp. 508 ; Denison v. Denison, 85 Misc. Rep. 498 , 147 N. Y. Supp. 575 ; Schwartz v. Scott, 35 N. Y. Supp. 607 ; Nimcke v. N. Y. Evening Journal Pub. Co., 133 N. Y. Supp. 1075 . It is stated in the affidavit of defendants’ attorneys, upon which the notice of motion is based, that when this action was commenced the plaintiff was, and ever since has been, a nonresident of the county of Nassau, and was and still is a resident of the borough of Brooldyn, New York City, and such nonresidence is admitted in the plaintiff’s opposing papers.

[2, 3] The plaintiff claims that the defendants’ right to security has been lost through not moving until after issue was joined. As an excuse for not moving before serving their answer, the defendants allege in the affidavit of the defendant Joseph Bacigalupo, submitted on this motion, that they did not know where the plaintiff resided at the time of the commencement of this action, or at any time subsequent thereto, until they were informed by Henry L. Maxson, one of their attorneys, subsequent to the service of the defendants’ answer herein, that the.plaintiff was a resident of the borough of Brooklyn, New York City.

Correspondence which has been submitted upon this motion shows that the defendants’ attorneys served upon plaintiff’s attorney, with the answer herein, on December 9,' 1914, a written demand for plaintiff’s address, and, receiving no reply, again on December 29, 1914, repeated said demand in a letter dated on said day, stating that if such demand • was not complied with they would apply to the court for an order with costs, whereupon on January 2, 1915, plaintiff’s attorney supplied the information as to the plaintiff’s address in a letter addressed to the defendants’ attorneys under said date, and thereupon the defendants’ attorneys- prepared their papers upon this motion and served same upon

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the plaintiff’s attorney. As said by Mr. Justice Gildersleeve, in Dunaway v. Terry, 37 Misc. Rep. 510 , at page 511, 75 N. Y. Supp. at page 974: “There is no well-defined rule as to what constitutes a sufficient excuse for loches in such cases.” Each case must be disposed of in such manner as seems fair and reasonable upon the facts presented.

The delay of the defendants in moving was due to their want of knowledge of the plaintiff’s residence and their desire to make sure of the fact before making a motion for security. It is well settled that the court may, in its discretion, grant an order requiring such security, even after the service of the answer, when a reasonable excuse for the delay is shown; and want of knowledge of the plaintiff’s address has been held a sufficient excuse. Corbett v. Brantingham, supra. Under the circumstances disclosed by the papers, I find that the defendants have not been guilty of such loches as would preclude them absolute "right of security.

The motion is therefore granted. No costs.

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