Abell v. Bradner — 17 N.Y. St. Rep. 859

Majority

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Thurlow W. Abell et al. v. Alonzo Bradner and Andrew J. Holden, Impleaded With Others.

(Supreme Court, Special Term, Livingston County,

Filed May 10,1888.)

Headnote

1. Costs—Security for—When a matter of right—When discretionary—Code Civ. Pro. §§ 3269 and 3272.

In the cases mentioned in Code Civ. Pro. § 3269 the defendant may re

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quire security for costs as a matter of absolute right and the court has no discretion, but must under section 3272 make the order for security, but whenever the application therefor has been unusually delayed the granting of it rests in the sound discretion of the court and the defendants right to-require security may be lost by loches and his neglect promptly to avail himself of such benefit.

2. Same—What loches sufficient to fobfeit—Right effect of judgment IN FAVOB. OF PLAINTIFF.

Where all the plaintiffs became non-residents in September, 1887, and since then and before making application for security for costs in April, 1888, the interlocutory judgment with costs in favor of the plaintiff had ■ been entered and hearings thereunder before the referee appointed entered, upon, Held, that plaintiff's delay must defeat the motion. That the interlocutory judgment against the defendants would defeat the motion.

Motion by defendants to compel plaintiffs to give security for costs of the defendants, who have answered, and that plaintiff’s proceedings be stayed until such security is given.

The moving affidavits show that the action was commenced in May, 1886, and was tried in December of the same year, and decided soon after. That interlocutory judgment was entered on such decision January 6, 1887, and. a copy thereof served on defendants’ attorneys; that Alonzo^ Bradner appealed from such judgment to the general term-(see 11 N. "Y", State Rep., 246), where it was affirmed with a modification in the form, and a further interlocutory judgment was entered November 11, 1887, and a copy thereof served on the attorney for said Bradner on the 22d November, 1887, by which it was referred to John R. Strang, to take certain accounts, and there have been several hearings-before the referee, and the matter is still pending.

When the action was commenced, the plaintiffs were all residents of Monroe county, N. Y.; in the spring of 1887 the plaintiff, Thurlow W. Abell, removed to the state of Minnesota, and that about August or September, 1887, the other plaintiffs removed to the same place.

The papers for the present motion are dated April 19,. 1888.

The affidavit in opposition to this motion shows that the interlocutory judgment adjudged that the plaintiffs recover their costs against the defendants Bradner and Holden, and that the judgment of affirmance was with costs to the plaintiffs against the same defendants, and alleges that, hearings have been had before the referee on said accounting without any objection on the part of defendants since they had knowledge of plaintiff’s non-residence.

J. A. Vanderlip, for motion; É. Harris, opposed.

Section 3269, Code Civil Procedure, provides that the defendant may require security for costs to be given, where after the commencement of the action the plaintiff ceases to be a resident of the state, and section 3272 provides that where security for costs is required to be

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given the court in which the action is pending, or a judge thereof, upon due proof by affidavit of the facts, must make an order requiring the plaintiff to give such security.

It is abundantly settled that in the cases mentioned in section 3269 the defendant may require security for costs as a matter of absolute right, and that the court has no discretion, but must under section 3272 make the order for security. But wherever the application therefor has been unusually delayed, the granting of it rests in the sound discretion of the court, and the defendant’s right to require security may be lost by loches and his neglect promptly to avail himself of such benefit. 4 Civ. Pro. Rep., 82, note, and cases cited.

Since the authorities in that note collected the following pertinent to the question of delay and waiver have followed in the same direction. In Fitzsimmons v. Curley (6 Civ. Pro. R., 156), where it was claimed that the plaintiff, had become a non-resident since the commencement of the action, the court said: “We are also of opinion that the defendant by proceeding with the trial before Judge Freedman waived his right to the security. So far as appears, he knew all about the facts he has stated in his affidavit prior to commencing the trial, and knowing all those facts he proceeded with the trial, and did not make this application until Judge Freedman had suspended the trial and ordered certain issues to be tried by a jury. It was then too late.” In the present case, the defendant by not disclosing when he acquired the knowledge that plaintiffs had become non-residents, no presumption is to be indulged in his favor as to when he obtained the knowledge. They were all non-residents as early as September, 1887, and since then and before making this application, the interlocutory judgment on the decision of the general term has been entered, and the hearing before the referee has been «entered upon.

In McDonald v. Peet (7 Civ. Pro. R , 200) the action was «commenced July 31, 1883, by a plaintiff who was known to the defendants to be a non-resident, but they did not move for security until February 15, 1884, and it was held that although the right to security was absolute, not resting in the discretion of the court, yet that it was lost by the loches which operated as a waiver. That case differs from the present in that it appeared that defendants knew of the non-residence of the plaintiff when the action was commenced. I am led to the conclusion that the delay of defendant must defeat this motion.

Another point is made against this motion, viz., that the interlocutory judgment against the defendants must defeat it. This would certainly have been so under the Revised

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Statutes. Butter v. Wood, 10 How., 313 ; Flint v. Van Deusen, 24 Hun, 440 . In a case arising under section 3276, where the language is as imperative on the court to grant the order as it is in section 3272, it was held that a judgment against the defendant should defeat his motion. Brackett v. Griswold, 12 N. Y. State Rep., 402; citing Flint v. Van Deusen, supra. And I am inclined to the opinion that this point is good in the present case.

Motion denied, wdth ten dollars costs.