Wolf v. Houston, West Street & Pavonia Ferry Railroad

Majority

p. 789

Wolf v. Houston, W. S. & P. F. R. Co.

(Supreme Court, General Term, First Department.

November 23, 1888.)

Headnote

Costs—Security for—When Denied.

A motion for security for costs, made two years after the action was instituted, and after three trials, two of which had resulted in a disagreement of the jury, and the third in a dismissal of the complaint, from which plaintiS had appealed, should be denied.

Appeal from special term, Hew York county; Lawrence, Justice.

Order denying defendant’s motion to compel plaintiff to file security for costs. Defendant appeals.

Argued before Van Brunt, P. J., and Bartlett and Daniels, JJ.

James A. Briggs and Miller & Wells, for appellant. Max Altemeyer, for respondent.

The action was commenced for a personal injury on the 4th of June, 1886. It was tried twice, resulting on each trial in a disagreement of the jury. The third trial took place in April, 1888, when the complaint was dismissed. From the judgment on that dismissal the plaintiff appealed on the 17th of April, 1888, (see ante, 787,) and it was not until the 28th of the same month that proceedings were taken to obtain security for costs. This was such a period of delay as to require the application to be denied, as it was, by the order. Buckley v. Gutta Percha Co., 3 Civ. Proc. R. 428; Wide v. Insurance Co., 2 Abb. N. C. 325 ; Robertson v. Barnum, 29 Hun, 657 . The order from which the appeal has been brought was accordingly well sustained, and it should be affirmed, together with $10 costs, and the disbursements.

Van Brunt, P. J., and Bartlett, J., concur.