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Winchester v. Brown

4 N.Y.S. 155 Court N.Y. Gen. Term Decision date 1889-01-28 English

Delivered by Daniels, J.

Contents

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p. 155
Winchester v. Brown.
(Supreme Court, General Term, First Department.
January 28, 1889.)

Headnote

Costs—Security for—Extension of Time.
Denial of motions to vacate an order requiring plaintiff to file security for costs, and to extend the time of filing-it, will not preclude the court, on defendant’s motion to dismiss the complaint, for plaintiff’s failure to file the required security, from allowing the latter another opportunity to file it, where it appears that he had theretofore been unable, because of sickness, to procure the security, but had at last done so, and that, if the case were dismissed, a further action might he barred by limitation.
Appeal from special term, New York county.
Action by George C. Winchester against T.' Quincy Browne. Defendant appeals from an order directing the dismissal of plaintiff’s complaint only unless certain conditions were complied with.
Argued before Van Brunt, P. J., and Bartlett and Daniels, JJ.
Abbett & Fuller, (Henry Schmitt, of counsel,) for appellant. A. Walker Otis, for respondent.

On the 30th of April, 1887, an order was made on notice directing the plaintiff in this action, within 20 days after the service of a copy thereof, to pay into court the sum of $250, or file with the clerk an undertaking to be executed pursuant to the provisions of the Code, in a sum not exceeding $1,000, as security for the defendant’s costs in the action. This order was made upon affidavits tending to establish the fact that the plaintiff was a resident of the state of Massachusetts. Neither the money was deposited, nor the undertaking given, and on the part of the plaintiff a motion was afterwards made to vacate the order requiring this security. This motion was denied on the 22d of June, 1887, and on the 27th of the same month motion papers were served for a motion extending the time within which the security might be provided. This was heard on the 2d of July, 1887, and the motion was denied. A motion was also noticed on behalf of the defendant to-dismiss the complaint because of the failure of the plaintiff to furnish this security. And by way of resisting the motion, the complaint in the action, together with affidavits directly tending to substantiate the justice of the plaintiff’s claim, were read upon the hearing; and so were affidavits produced on behalf of the defendant, tending to maintain the conclusion that the action was without merit. It was also shown that on the 28th of July, 1887, an undertaking had been obtained in the form prescribed by the Code for the security of the defendant’s costs, not exceeding in amount the sum of $1,000, and the court, considering that to be a just disposition of the motion, directed the complaint to be dismissed, unless within five days after the service of a copy of the order the plaintiff should pay to the defendant’s attorneys $30 for the costs of the several motions which had previously been decided against him, and the surety in the proposed undertaking should justify, if excepted to, or new sureties should be provided as that has been permitted by the Code. And it is from the liberty in this manner given to the plaintiff still to file security, and to protect himself by doing so from the dismissal of the complaint, that the defendant has appealed; and the appeal, it is urged, should be supported because of the effect which these preceding orders had in the way of determining the controverted questions included in the motions.

It is no doubt the law that in ordinary cases the decision of a motion will prevent its repetition or rehearing by the court making the order, or any other tribunal in like manner constituted. That was decided in Jay v. De Groot, 2 Hun, 205 , and afterwards so far followed in Tunstall v. Winton, 31 Hun, 219 , and if the court before which the final motion was made and decided had applied this principle to the disposition of the case, the plaintiff would probably have been concluded by the decision made in that manner. But it was-

p. 156
not bound to do so, for neither one of the preceding orders had in any form directed or provided for the dismissal of the complaint. To obtain that end an additional motion on behalf of the defendant became a necessity, arid; when that was heard, the court still had the right to look into all the facts as they were disclosed by the complaint and the affidavits, for the just disposition of the motion. They had upon no preceding'occasion been so generally or broadly brought to the attention of the court, and, as the complaint could only be dismissed by a further order to be made, it could still be considered whether in justice the defendant was entitled to that order. That subject had in no way been decided by either of the other orders, and it has been held that preceding orders maybe reconsidered under circumstances of the nature of those brought to the attention of the court. Riggs v. Pursell, 74 N. Y. 370 . There it was said in the opinion of the court that “where additional facts are presented, or defects in proofs supplied, it is quite usual to grant leave to renew a motion which has been denied, or to rehear one which has been granted;” and “the rule requiring leave to be obtained before renewing a motion is one of practice merely, to avoid confusion and abuses, but does not affect the power of the court to reconsider its decision on a motion upon additional facts. In this respect such decisions and orders differ essentially from judgments in actions or special proceedings.” Id. 379 . And that an order is not controlling as a judgment would be was also held in Easton v. Pickersgill, 75 N. Y. 599 , and Veeder v. Baker, 83 N. Y. 156 . If the plaintiff had been the moving party, the application then, regularly, would be for leave to file the undertaking which had been prepared, or for a reconsideration of the preceding motion. But as he was not the moving party, but the motion was made by the defendant, it could be answered by showing a state of facts rendering it inequitable to dismiss the complaint of the plaintiff; and it was stated as a fact that in case of a dismissal of the complaint a further action in his behalf would be avoided by the statute of limitations. That has been denied, however, on behalf of the defendant. Who may be technically right as to this ■disputed effect of the statute it will not become necessary to decide, but it may be inferred, as the defendant is a resident of the state of Massachusetts, if the •complaint should be dismissed, he may not again be served with a summons in this state, and if the plaintiff is bound to resort to a new action in the state ■of Massachusetts, there the statute may be a defense. In either view it would be perilous to the plaintiff to dismiss his complaint. It may be, yrithout legal merit, but that can only be tried and determined upon the evidence, if a trial ■of the action shall take place. As a matter of fact it was stated that the plaintiff had been enfeebled in his health by the transactions set forth as the ground •of the action, and had not been able to obtain the security required, but to save his action he had at last obtained the security; and on this, as well as other facts detailed in the affidavits, the court considered it to be just not to dismiss the plaintiff’s complaint without affording him one more opportunity of complying with the preceding orders by filing security for costs; and that the court still had the power to do, as a condition on which the plaintiff’s motion should be allowed to prove successful. The order should therefore be affirmed, with $10 costs, and the disbursements, and the plaintiff allowed within five days after notice of this decision to comply with the order. All concur.

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