Stevenson v. New York, Lake Erie & Western Railroad

Tbe defendant, upon an affidavit made by its secretary, Mr. McDonough, obtained an order on tbe 20th of January, 1888, requiring tbe plaintiff to file security for costs within ten days after tbe service of a copy of tbe order. On tbe third of February succeeding, tbe plaintiff, upon an affidavit that be was a resident of this county, obtained an order to show cause why tbe previous order should not be vacated. Upon tbe bearing provided for in tbe last order, several affidavits were read of conversations bad with tbe plaintiff, during which be admitted that be was a resident of Jersey Oity, in tbe State of New Jersey. And one affidavit was read in which it was asserted that be was still a resident of that State, which was. sworn to on tbe seventh of February, of tbe present year.

No response was made to these affidavits, by tbe plaintiff, and tbe question of fact as to the residence would seem to have been sustained by tbe defendant. That question does not, however, appear to have been considered by tbe learned justice in tbe court below, and his. disposition of tbe motion rests upon tbe laches of tbe defendant, the order to file security for costs not having been obtained until after tbe defendant bad answered. On that subject, it appears that tbe action was commenced on tbe 25th of November, 1887; that on tbe fourteenth of December of tbe same year, tbe defendant’s-attorneys appbed for an extension of tbe time to serve an answer, which was given, and tbe answer was served on tbe 3d of January, 1888. It was not until tbe sixteenth of January following, that any request was made to file security for costs. Tbe learned justice in the court below was, therefore, right in asserting that tbe order to file security for costs was not obtained until after tbe defendant bad answered. ■ It does not appeal’ on tbe part of tbe defendant that tbe non-residence of tbe plaintiff, assuming tbe allegation thereof to be true, was not known to any of its officers prior to tbe service-of tbe answer, and tbe omission to prove that fact, if it existed, is-

The learned justice deciding the case cited, said that “ the provisions of section 3268 (relating to the subject), are intended solely for the benefit of the defendant; a neglect to promptly avail himself of such benefit would be construed as a waiver,” and, further,, that “ the rule is too familiar to require a citation of authorities.”

In that case, as in this, the order for security was not obtained until after the answer had been served. This case was disposed of upon the authority of that adjudication, and it seems to be in accord with the established rules relating to the subject. It is supposed by the learned counsel for the appellant, that the burden rests upon the-plaintiff to show affirmatively that the defendant knew of the non-residence, in order to avail himself of the doctrine of laches, but this is an erroneous view. The defendant having been apparently guilty of laches, was bound to overcome that obstacle by presenting upon the hearing the evidence to accomplish that result, if it were in his power to do so. The plaintiff had the right to rely upon the insufficiency of the application if he chose to do so.

For these reasons the order appealed from must be affirmed.

Van Brunt, P. J., and Bartlett, J., concurred.

Order affirmed.