Republic of Honduras v. Soto — 54 N.Y. Sup. Ct. 174

Majority

p. 174

THE REPUBLIC OF HONDURAS, Appellant, v. MARCO AURELIO SOTO, Respondent.

Headnote

Security for costs — additional security may he required when a deposit has been made in lieu of am, undertaking — Gode of Giml Procedure, secs. 3272, 3276.

An order having been made requiring the plaintiff to file security for costs as a non-resident, in the amount of $250, he deposited $250 in the court as security, instead of giving an undertaking therefor. The defendant having thereafter moved for and obtained an order requiring him .to give additional security, the plaintiff appeared, claiming that the court had no power to make the order, because the only case in which additional security could be required was the one specified in section 3276 of the Code of Civil Procedure, in which an undertaking for costs had been given.

Held, that the claim could not be sustained, as the intention of the legislature to have this section apply to the case of a deposit in lieu of an undertaking, was shown by the last sentence of the 3276th section, which made the provisions relating to a deposit, contained in section 3272, apply to an order for additional security made pursuant to section 3276.

Appeal from an order increasing tbe amount of security for costs.

Philip J. Joctehimson, for tbe appellant.

Emmet R. Oleott and William Q. Judge, for tbe respondent.

An order having been made for tbe plaintiff to file security for costs as a non-resident, with an order to show cause upon tbe return of sucb order, tbe learned judge beld that be could only, in tbe first instance, exact security in tbe amount of $250, and that tbe defendant must make another motion if he wanted increased security. Tbe plaintiff deposited $250 in tbe court as security for costs, instead of giving an undertaking therefor. Subsequently tbe defendant moved for additional security, which motion was granted and from tbe order thereupon entered this appeal is taken.

It is claimed that tbe order appealed from is entirely without jurisdiction because tbe only case in which additional security can be required is one in which an undertaking for costs has been given because by section 3276 of tbe C.ode it is enacted that at any time after tbe allowance of an undertaking tbe court or a judge thereof, upon proof by affidavit that tbe sum specified in tbe undertaking is

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insufficient, must make an order requiring tbe plaintiff to give an additional undertaking. It is, however, clear that the legislature intended this provision to apply to the case of a deposit in lieu of an undertaking, because by the last clause of section 3276, the provisions relating to a deposit contained in section 3272, are made to apply to an order for additional security made pursuant to section 3276.

There is no reason, if the amount deposited is insufficient, that the defendant should be deprived of his right to additional security which he would have, had an undertaking been given. The whole tenor of the section is that the deposit shall take the place of an undertaking and be subject to the same conditions. The order appealed from should be affirmed, with costs.

Beady and Daniels, JJ., concurred.

Judgment affirmed with costs.