Majority
p. 117CORNUEL et al. v. HEINZE. (Supreme Court, General Term, First Department. February 17,1893.) Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.
Headnote
Security for Costs—Time of Filing.Code Civil Proc. § 3277, provides that, where a nonresident plaintiff fails to comply with an order requiring security for costs to be filed, defendant is entitled to judgment dismissing the complaint. Held, that the court can allow such security to be filed after the expiration of the time limited by order.
Appeal from special term, New York county.
Action by Emil Alfred Cornuel, Alexis Ludwig, A. Bullot, and E. Jacobs against Otto C. Heinze. On defendant’s motion, plaintiffs being nonresidents, were ordered to file security for costs within 5 days, which order was afterwards extended 60 days, by stipulation; and, such additional time having elapsed without security being filed, defendant gave notice of motion to dismiss the complaint, under Code Civil Proc. § 3277; and thereafter, and before the hearing of such motion, plaintiffs filed security. From an order denying the motion to dismiss, and allowing the security filed to stand as the security required by the former order, defendant appeals. Affirmed.
Arthur P. Heinze, for appellant.
Tracy, Boardman & Platt, for respondents.
We are of the opinion that the court had power to allow the plaintiff to file security for costs after the expiration of the time limited in the order, as extended by the stipulation, upon such
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terms as were just and equitable; and that it had the right to refuse to dismiss the complaint upon the plaintiffs’ complying with such terms, and filing such security. The order should be affirmed, with $10 costs and disbursements.