Renwick v. New Central Coal Co. — 14 N.Y. St. Rep. 758

Majority

p. 758

George A. Renwick v . The New Central Coal Company.

(New York Superior Court, General Term,

Filed April 2, 1888.)

Headnote

1. Attorney and client—Liability for costs of attorney fob a nonresident plaintiff—Code Civ. Pro.. § 3278.

The liability for costs of an attorney for a non-resident plaintiff is a continuing one. It begins at the time the action is begun, and continues un til security for costs is given and if no such security is given, it runs as well against the person who is attorney for the plaintiff at the time the judgment is obtained as against the person who was such attorney when the action was commenced.

2. Same—How relieved of liability.

The only way that an attorney for a non-resident plaintiff can relieve himself of such liability is by seeing to it that the plaintiff gives the security required by said section.

Appeal from order.

Henry C. Atwater, app’lt in person ; Eugene D. Hawkins„ for resp’t.

The plaintiff was a non-resident, and began this action without security for costs. After the commencement of the action, the appellant, Atwater, was substituted as plaintiff’s attorney in the place and stead of the person who was plaintiff’s attorney at the time the action was commenced. The complaint was dismissed at the trial, and a judgment for costs was entered against the plaintiff. This judgment was for more than $100. Execution against the property of the plaintiff was issued thereon, and was re-' turned unsatisfied. The defendant then made his motion to compel Mr. Atwater to pay $100, on account of such costs. The motion was granted, and Mr. Atwater appealed from the order granting the motion.

It was claimed by the appellant on the argument before the general term as had been claimed by him at special term, that he should not be compelled to pay said sum of $100, because the action had been commenced in this state by a non-resident plaintiff at the request of the defendant, and that for that reason the defendant was estopped from invoking the aid of section 3278 of the Code of Civil Procedure. This statement of fact was denied by the defendant, and was, we think, rightly decided at special term.

We are also of the opinion that the fact that the appellant was not the attorney for the plaintiff at the time the action was commenced, does not affect his liability for costs under section 3278 of the Code. The liability for costs of an attorney for a non-resident plaintiff, is a continuing one. It begins at the time the action is begun, and continues until security for costs is given; and if no such security for' costs is given, it runs as well against the person who is attorney for plaintiff at the time the judgment is obtained as against

p. 759

the person who was such attorney when the action was commenced.

The only way that an attorney for a non-resident plaintiff can relieve himself of such liability is by seeing to it that the plaintiff gives the security required by section 3278.

The order appealed from is affirmed, with costs. Sedgwick, Oh. J., concurs.