p. 99Elwood S. Hand, App’lt, v. William A. Shaw et al., Resp’ts.(New York Common Pleas, General Term,Headnote
Costs — Security—New York City Court.An order, requiring security for costs in the New York city court will not be reversed on the ground that the moving affidavits fail to state that plaintiff had an office in the city, where the affidavits submitted on the hearing of the motion raise a contested issue upon the fact of his residence.
Appeal from an order of the city court, affirming an order requiring the plaintiff to file security for costs on the ground that he was a non-resident. .
Charles De Hart Brower, for app’lt; David J. Newland, for resp’ts.
— The right of a defendant in an action to security for costs where the plaintiff is a non-resident is an absolute one, and does not rest in the discretion of the court. Buckley v. Manufacturing Co., 3 Civ. Proc. R. 429 ; affirmed, 93 N. Y. 637 ; McDonald v. Peet, 7 Civ. Proc. R. 200. Whether or not a party against whom such a motion is made is a non-resident is to be determined from the evidence submitted, and in this case such evidence was by affidavit. The ordinary rules of evidence governing the testimony of witnesses upon the trial of disputed questions-of fact are the same whether the trial be had upon oral testimony qr the depositions of witnesses. Dietlin v. Egan, 46 St. Rep. 762 . In this case there was abundant evidence to ¡sustain the decision made at the special term of the city court. It is true that this was contradicted by opposing affidavits, from which a contrary conclusion .might have been arrived at; but it is not the province of this court to review a decision made upon disputed questions of fact.
Appellant, however, contends that the affidavits nowhere stated that the plaintiff did not have an office in the city of Hew York,
p. 100and therefore did not bring himself within the .provisions of the Code requiring security for costs. As there was a hearing of the motion for security on an order to show cause, at which the plaintiff submitted affidavits tending to show residence, and the defendants affidavits on their part to show facts and particulars of non-residence, the question was fully and completely before the court below, and, if it had been the fact that the plaintiff did at that time have an office in the city of New York, he could have shown it by affidavit, when, although an actual non-resident of the state, he would have been deemed a resident for the purposes of giving security for costs.
Mitchell v. Dick,
8 Misc. Rep. 100 ; 60 St. Rep. 161 . The case
of Stephenson v.
Hansen, 4 Civ. Proc. R. 104, is clearly distinguishable from this. In the case before us the plaintiff was called into court by an order to show cause, and undertook to show that he was a resident, and it rested on him to show everything possible to support his contention.
Mitchell v.
Dick, supra.The order should therefore be affirmed, with costs.
All concur.