Wolf v. Houston & West Street & Pavonia Ferry R. R. Co. — 19 N.Y. St. Rep. 762

Majority

p. 762

Isaac Wolf, by his Guardian, etc., Resp’t, v. The Houston and West Street and Pavonia Ferry R. R. Co., App’lts.

(Supreme Court, General Term, First Department,

Filed November 24, 1888.)

Headnote

1. Security eor costs—When party, not entitled to by reason oe LACHES.

The action, in question was commenced for a personal injury on the 4th. of June, 1886. It was twice tried, resulting on each trial in the disagreement of the jury. The third trial took place in 1888, when the complaint was dismissed. From the judgment on that dismissal the plaintiff appealed on the 17th of April, 1888, and it was not- until the twenty-eighth of the same month that proceedings were taken to obtain security for costs. Held, that this was such a period of delay as to require that the application he denied.

Appeal from an order denying the defendant’s motion to compel the plaintiff to file security for costs.

James A. Briggs, for app’lts ; Max Altmeyer, for resp’t.

The action was commenced for a personal injury on the 4th of June, 1886. It was tried twice, resulting on each trial in a disagreement of the jury. The third trial took place in April, 1888, when the complaint was dismissed. Prom the judgment on that dismissal the plaintiff appealed on the 17th of April, 1888, and it was not until the twenty-eighth of the same month that proceedings were taken to obtain security for costs. This was such a period of delay as to require the application to be denied, as it was by the order. Buckley v. Gutta Percha Co., 3 Civil Pro. R., 428 ; Wice v. Com. Ins., 2 Abb. (new cases), 325 ; Robertson v. Barnum, 29 Hun, 657 .

The order from which the appeal has been brought was accordingly well sustained, and it should be affirmed, together with $10 costs costs and disbursements.

Van Brunt, P. J., and Bartlett, J., concur.