Donnelly v. Third Ave. R. — 98 N.Y.S. 387

Majority

p. 387

(112 App. Div. 648)

DONNELLY v. THIRD AVE. R. CO.

(Supreme Court, Appellate Division, First Department.

April 20, 1906.)

Headnote

Costs — Security—Application—-Laches.

On a motion by defendant to require plaintiff to give security for costs, on the ground that plaintiff had been adjudged a bankrupt after issue joined, defendant was not obliged to show affirmatively, diligence in discovering the bankruptcy.

p. 388

Appeal from Special Term, New York County.

Action by Michael Donnelly against the Third Avenue Railroad Company. From an order vacating an order requiring plaintiff to give security for costs, defendant appeals.

Reversed.

Argued before O’BRIEN, P. J., and PATTERSON, INGRAHAM, LAÜGHEIN, and CEARKE, JJ.

Bayard H. Ames, for appellant.

D. O. E. Cohalan, for respondent.

The order requiring security for costs was granted upon the ground that since the commencement of the action, and after issues joined therein, and after the cause was placed upon the calendar, the plaintiff was duly adjudged a bankrupt. The order vacating the order requiring security for costs appears to have been granted upon the ground of laches. We fail to find in the record any evidence of laches. It does not appear when the plaintiff became a bankrupt, or when the defendant became aware of such bankruptcy. Surely, where the bankruptcy occurs after issue joined, there can be no duty of active vigilance on the part of the defendant to discover it; and the defendant is not obliged to show affirmatively on a motion of this kind diligence in discovering the bankruptcy occurring after joinder of issue, which is the basis of the motion.

It follows, therefore, that the order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.

All concur.