Churchman v. Merritt — 19 N.Y. St. Rep. 171

Majority

p. 171

Anna E. Churchman, Resp’t, v. Hannah B. Merritt et al., App’lts.

(Supreme Court, General Term, First Department,

Filed November 24, 1888.)

Headnote

1. Security for costs—May be required -where plaintiff does not RESIDE IN STATE—APPLICATION IS NOT DISCRETIONARY—CODE CrV. Pro., § 3268.

It is provided by Code Civ. Pro., § 3268, that tbe defendant in an action brought in a court of record may require security for costs to be given where the plaintiff was when the action was commenced a person residing without the state. Held, that where the application for a non-Tesident plaintiff to give security for costs was made with diligence, it was not discretionary with the court, but must be granted.

% Same—May be required although non-resident plaintiff has property WITHIN STATE.

Held, that the operation of the rule was not varied by the fact that there was sufficient of the plaintiff’s property in the state under the control of one of the defendants to afford ample security for the costs of the action.

Appeal from an order vacating an-order requiring the plaintiff to file security for costs.

p. 172

Marshall P. Stafford, for app’lts; James E. Chandler, for resp’t.

The action was commenced on the 20th of June, 1888, and on the 22d day of the same month an order was made upon an affidavit stating the plaintiff to be a resident of the state of Pennsylvania, requiring her to file security for costs. Upon an affidavit showing that her property was situated in this state and under the control of at least one of the defendants, and afforded amplejsecurity for the costs in this action, the order was vacated. The decision vacating the order requiring security to be filed was also based in part upon the authority of Todd v. Marsilly (7 N. Y. State Rep., 872). But in that case the application for security was denied on account of the unreasonable delay in making it, while no such objection was or could be raised in this case.

Section 3268 of the Code of Civil Procedure has vested the defendant with the right to require security for costs to be filed in certain cases including that of a non-resident plaintiff, and the enactment has been made in such language as to afford the court no discretion over the application where it may be made with diligence, and such is the view which has been expressed and followed in decided cases. Healy v. 23d St. Railway Co., 1 N. Y. Civil Pro. Rep., 15; Buckley v. Gutta Percha Co., 3 id., 428. And this construction was referred to as that which the statute should receive in Robertson v. Barnum ( 29 Hun, 657 .)

It is further confirmed also by section 3271 of the Code, providing for other cases in which the court may, in its discretion, require security to be given. Subjecting this authority to the discretion of the court, as it was expressly done by this section, is an indication that it was not intended that the right to security in the cases previously provided for should be in any manner dependent upon the discretion of the court, where the application for the order should be made with diligence. And as the defendants were entitled to the order in this instance, they could not be deprived of their right to it by reason of the circumstance that the plaintiff had ample property in the state from which the costs of an unsuccessful litigation on her part could be collected by the defendants.

The right to the order has not been subjected to that condition.

This order was made without notice, but the language employed in the enactment of section 3272 of the Code of Civil Procedure permits that to be done.' It is true that this section is no broader than the law as it was contained in the Revised Statutes (2 R. S., Edmonds’ ed., 644, § 3),

p. 173

under which the practice prescribed and followed required the order to be made, either upon notice, or a preceding order to show cause. Champlin v. Pierce, 3 Wend., 445 . That undoubtedly is the more judicious mode of proceeding, but at the same time whether it shall be followed must depend upon the discretion of the court or judge to whom the application may be made. As the law is enacted, an absolute order in the first instance is not unauthorized.

The order from which this appeal has been brought .should be reversed, with the usual costs and disbursements, to abide the event of the action.

Van Brunt and Bartlett, JJ., concur.