Melbourne v. Egbert — 56 N.Y.S. 1017

Majority

p. 1017

(26 Misc. Rep. 737.)

MELBOURNE v. EGBERT.

(Supreme Court, Appellate Term.

March 24, 1899.)

Headnote

Security for Costs.

Under Consolidation Act, §§ 1298, 1299, made applicable in the municipal courts by Greater New York Charter, § 1369, a nonresident of New York City may sue by long summons without giving security for costs.

Appeal from municipal court, borough of Manhattan, First district.

Action by John W. Melbourne against Thomas Egbert. From a judgment for defendant, plaintiff appeals.

Reversed.

Argued before FREEDMAN, P. J., and MacLEAN and LEVEN-TRITT, JJ.

George F. Alison, for appellant.

Phillip F. Olwell, for respondent.

At the trial of this action the attorney for the defendant moved to dismiss the complaint because of failure to file security for costs, the plaintiff being a nonresident. The justice granted "the motion “because of plaintiff’s noncompliance with the order of the court that=he file a bond for costs.” No such order appears in the return, and, if made, it was improper, because the plaintiff- was entitled to sue by what is commonly called a “long summons,” in which security for costs was not required under the former practice (Glass v. Place, 5 Daly, 110 ); nor is it now required under sections 1298 and 1299 of the consolidation act, made applicable to the present practice and procedure of the municipal courts by section 1369 of the greater New York charter.

The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.