Sims v. Bonner — 42 N.Y. St. Rep. 10

Majority

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George V. Sims et al., Resp’ts, v. Edward L. Bonner et al., App’lts.

(New York Superior Court,

General Term,

Filed December 14, 1891.)

Headnote

1. Costs—Security for—Loches.

The summons herein was served, in December, 1890, and extensions of time to serve complaint and answer were 'given. Motion for security for costs was not made until July, .1891. 'Held, that defendants were guilty of loches in making the motion, and it was discretionary with the court to grant the motion.

2. Same.

Where an action is begun by a non-resident, but thereafter additional plaintiffs who are residents arc brought in by order, the defendant is not entitled to security for costs.

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Appeal from an order denying motion to compel the plaintiff, George V. Sims, to file security for costs.

Charles W. Gould, for app’lts; Holmes & Adams, for resp’ts.

It is well settled that defendant’s right to demand security for costs, under § 8268 of the Code, from a nonresident plaintiff, is absolute, unless defendant waives that right by loches ; in which case it becomes discretionary with the court to grant the motion upon defendant’s satisfactory explanation of his delay. See Buckley v. Gutta Percha Co., 3 Civ. Pro., 428; Churchman v. Merritt, 50 Hun, 270 ; 19 St. Rep., 171 ; Wood v. Blodgett, 15 Civ. Pro., 114; 17 St. Rep., 295 ; Robertson v. Barnum, 29 Hun, 657 ; Healy v. The Twenty-third Street R. Co., 1 Civ. Pro., 15; Abel v. Bradner, 15 id., 241; 17 St. Rep., 859 ; Kleinpeter v. Enell, 2 Civ. Pro., 21; Ryan v. Potter, 4 id., 80. It has also been held that if the plaintiff was a non-resident at the commencement of the action, he is not excused from giving security for costs by subsequently becoming a resident. See Ambler v. Ambler, 8 Abb. Pr., 340 . In the present case, assuming the plaintiff Sims was a non-resident of the state at the time of the commencement of the action, of which there seems to be some doubt, was the defendant guilty of lachesin making his motion for security?

There is no very well defined rule as to what constitutes lachesin a case of this kind. The court of appeals, some years ago, held that the motion for security for costs may be made at anj" time before trial, see Gedney v. Purdy, 47 N. Y., 676 ; but the majority of more recent decisions have held that the motion should be made before the answer is served. See Stevenson v. N. Y., L. E. & W. R. R. Co., 14 Civ. Pro., 384; 16 St. Rep., 787 ; Robertson v. Barnum, 29 Hun, 657 ; Hay v. Power, 2 Edw., 494 ; Weber v. Moog, 12 Abb. N. C., 108 . In most of the more recent authorities, the doctrine is laid down that the defendant must act promptly, or he waives his absolute right to security for costs under § 3268 of the Code, and it then becomes discretionary with the court to grant the motion. See Hayes v. The Second Avenue R. R. Co., 4 Civ. Pro., 84; Buckley v. Gutta Percha Co., 3 id., 428, and cases above cited.

In the case under consideration, the summons was served on December 19th, 1890; the defendants appeared on January 7th, 1891; the time to serve the complaint was extended from time to time until it was finally served, on May 9th, 1891, and the defendants’ time to answer was extended to August 1, 1891. The order to show cause why security for costs should not be given was obtained on July 24, 1891, and the motion was finally argued on August 7, 1891. We find no claim that defendants were not aware of the fact, if fact it be, that the plaintiff was a non-resident from the very first. Under these circumstances, the defendants forfeited their absolute right, and it became discretionary with the court to grant the motion.

The addition of two presumably resident plaintiffs affects adversely the defendants’ claim. The action was commenced in the name of George V. Sims alone, who, as the defendants insist, was then a non-resident; subsequently, on April 13th, an. order was

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entered making G-ulliver and Ellen T. Sims additional plaintiffs, both of whom, in the absence of any claim to the contrary, must be presumed to be residents. See Fisher v. Charter Oak L.I. Co., 14 Abb., N. C., 32 ; afterwards, and on July the 24th, the defendants make this motion for security. There were then at least two resident plaintiffs, and the defendant must take the case as it stood when they made their motion. Consequently, under § 3270 of the Code, they were not entitled to the security demanded.

For the reasons above indicated, the order appealed from is affirmed, with costs.

Freedman, J, concurs. ■