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Requard v. Theiss

42 N.Y.S. 460 Court N.Y. City Ct. Decision date 1896-11-30 English

Delivered by CONLAN, J.

Contents

Majority

p. 460
(18 Misc. Rep. 563.)
REQUARD et al. v. THEISS et al.
(City Court of New York, General Term.
November 30, 1896.)

Headnote

Costs—Failure to Show Cause por not Securing.
A complaint cannot be dismissed because plaintiff, appearing pursuant to-an order to show cause why he should not file security for costs, fails to satisfy the court that security is unnecessary, as such failure only subjects him to an absolute order to file security.
Appeal from special term.
Action by George Theiss and others against Julius Requard and' others. From an order dismissing the complaint, plaintiffs appeal..
Reversed.
Argued before CONLAN, SCHUCHMAN, and O’DWYER, JJ.
Fromme Bros., for appellants.
Baggott & Ryall, for. respondents.

This is an appeal from an order dismissing a complaint on failure to file security for costs. The action was commenced on the 27th day of August, 1896, by the service of a summons and complaint, and on the 2d day of September, 1896, an order was made herein in the usual form, requiring the plaintiffs-to file security for costs within 10 days, and, in default of so doing, to show cause in chambers of said court on the 14th day of' September, 1896, why such payment should not be made or undertaking given, and why the said defendants should not receive such, order or further order or relief in the premises as to the court may seem meet. On the return day of the order, the plaintiffs’' attorneys appeared, and urged their reasons for not filing security for costs, which reasons were not deemed sufficient by the court,, and an order was thereupon made dismissing the complaint. This, we think, was error. The plaintiffs were not in default, nor had they in any way disobeyed the direction of the court. The only thing they failed to do was to satisfy the court that they ought not to file security for costs, and this only subjected them to an order-directing them to do so within the time to be fixed in said order;, and, upon proof of their failure to do so, the court, under Code, § 3277, could dismiss the complaint, with costs.

Order appealed from reversed, with costs, but without prejudice to renew at special term. All concur.