The practice was the same before the adoption of the Code. Robinson v. Sinclair, 1 Denio, 628 .This motion is made in bad faith and to hinder and delay the plaintiff. The court, in the exercise of ils sound discretion, should therefore deny it. The defendant has admitted upon the trial of action Wo. 1 that he signed the sealed instrument upon which this action is brought. The denial of this fact in the answer is therefore sham, as the remaining questions raised by it are obviously frivolous.
The defendant’s motive in making this application is also •shown by the fact that shortly after the commencement of action Wo. 1, he transferred his real estate to his son for a nominal consideration; but continued to keep possession of it himself.
The law looks with disfavor upon the privilege of security for costs, as it may be used to delay or obstruct justice. Shuttleworth v. Dunlop, 25 Alb. L, J., 8; Long v. Majestre, 1 Johns. Ch., 202
The defendant has, moreover, waived his right to security for costs by answering. Long v. Majestre, 1 Johns. Ch., 202 ; Duncan v. Stint, 5 B. & Ald.,702; Stevenson v. N. Y., L. E. & W. R. R. Co., 14 Civ. Pro. R., 384.
—This is a motion on the part of the defendant, who has answered in the action, for security for costs, under section 3268 of the Code of Civil Procedure.
This is an action on a written agreement executed in Pennsylvania, and, under the laws of that state, entitled to be regarded as an instrument under seal.
Whether it should be so regarded for the purposes of this action, and whether the action is or is not barred by the statute of limitations, will probably be the main issue to be tried.
The granting of the defendant’s motion is within the discretion of the court, and, in this case, the motion should, in my opinion, be denied. Todd v. Marsily, 7 N. Y. State Rep., 872; Churchman v. Merritt, 15 Civ. Pro. R., 245; Stevenson v. N. Y., L. E. & W. R. R. Co., 16 N. Y. State Rep., 787.