Longstreet v. Sawyer — 39 N.Y. St. Rep. 693

Majority

p. 693

Aaron Longstreet, Pl’ff, v. Cyrus M. Sawyer et al., Def’ts.

(Supreme Court, Special Term, Niagara County,

Filed June 29, 1891.)

Headnote

Security for costs—Code Civ. Pro., § 3373.

A county judge lias not authority to grant an order in an action in the supreme court, requiring a non-resident plaintiff to file security for costs.

p. 694

The summons and complaint in this action were served upon the defendant, Michael Hearey; he answered, and on the 8th day of June, 1891, upon an affidavit showing that plaintiff was not a resident of the state of New York, obtained an ex parte order of the county judge of Niagara county, requiring plaintiff to file security for costs. The plaintiff moved at the special term for an order vacating the order of the county judge.

Henry M. Davis, for motion; Burrall & Parker, opposed.

—The same reason seems to support the conclusion that a county-judge is unauthorized.to make the order requiring security for costs to be filed as there was for holding that he could not, by order, shorten the time for making a motion. The language is very much the same in this instance. In the latter it is that the order may be made by the court or a judge thereof, which has been held to exclude the county judge. Larkin v. Steele 25 Hun, 254 ; People v. Supervisors, 3 How., N. S., 242, 248.

And in the case of security the order by § 3272 of the Code of Civil Procedure is to be made by the court in which the action is pending, “or * * * a judge thereof.” The reason which was deemed sufficient to restrict this language to a judge of the court in which the action should be pending when the time in which the motion was to be regulated will impose the same restrictions on the more important order directing the filing of security for the costs. And it must accordingly be held that the order of the county judge, in this case, was not authorized by § 241 of the Code of Civil Procedure, and the motion must be granted, but as the point has been newly presented, it will be without costs.