Wood v. Blodgett — 56 N.Y. Sup. Ct. 64

Majority

p. 64

JAMES C. WOOD, Appellant, v. MARY G. BLODGETT and Another, as Administrators, Respondents .

Headnote

Security for costs by a nonresident plaintiff— ex parte application for an order therefor, when prop&r■ — notice, when required — security required for the costs of an appeal — laches—waveerof the right to demand security.

In. an action an order was made on the ex parte application of the defendant, upon due proof being made of the necessary facts entitling defendant to such order, that the plaintiff, a non-resident of the State, give security for costs, as provided in section 3268 of the Code of Civil Procedure.

Held, that the plaintiff was not entitled, under section 3272 of the Code of Civil Procedure, to notice of’ the application, it having been founded upon sufficient proof of the facts entitling the defendant thereto.

That where the application is based upon the provisions of section 3271, notice of motion is required and the application must be made to the court.

It was claimed that the defendant had waived his right to demand security for costs by proceeding to the trial of the action without previously demanding such security.

Held, that the right to demand security for costs of a non-resident plaintiff was an absolute one and did not rest in the discretion of the court.

That such right might be lost by the defendant’s laches, but if the delay was excused the court might at any time before judgment require the security to be given.

That the appeal was the commencement of a new proceeding in an action, after its determination by the rendition of a final judgment, and was a distinct proceeding from that which resulted in the recovery of the judgment.

That the defendant had the right, after judgment in his favor, to demand security for costs on the appeal by the plaintiff, although he had omitted to make any previous demand for the filing of security.

In the order appealed from the plaintiff was required to give security for the costs which had already accrued and those which might be awarded against him.

Held, that the court, in its discretion, had the power to require security for the payment of the costs which had already accrued, as well as those that might

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thereafter be awarded against plaintiff, but that as to so much of the order as required security for costs before final judgment, it rested in the discretion of the court, under the circumstances of the case, and the plaintiff was entitled to notice of the application, and it was irregular for the court to grant the order in that respect upon an ex pwrte application.

Appeal by tbe plaintiff from an order of tbe Monroe Special Term denying his motion to vacate an ex parte chamber order granted by a justice of this court requiring the plaintiff, who became a non-resident of the State after the commencement of the action, to file security for costs as required by sections 3268 and 3272 of the Code of Civil Procedure. At the time the first order was granted judgment had been entered in the defendant’s favor on the report of the referee dismissing the plaintiff’s complaint, with costs taxed at the sum of $196.84, from which judgment the plaintiff took an appeal.

J. I). Decker, for the appellant.

Shuart & Sutherland, for the respondents.

The defendant, in an action where the plaintiff is a non-resident of the State, may require him to give security for costs as provided in section 3268 of the Code of Civil Procedure. The amount and form of the security is determined by the provisions of section 3272, and the order requiring the security to be given may be granted by the court in which the action is pending, .or by a judge thereof, on an ex parte application of the defendant, upon due proof being made of the necessary facts entitling the defendant to the same. The language employed in section 3272 is mandatory and admits of no other construction. (Robertson v. Barnum, 29 Hun, 657 ; McDonald v. Peet, 7 Civil Pro. R., 200.) That the'plaintiff is not entitled to notice when the application is founded upon the provisions of section 3272, is the construction which has been placed upon this section by the Special Terms and judges at chamber in this department, in which we concur as the correct interpretation. The statute in this respect has changed the general rule of the court requiring all motions brought before the court to be on notice, or an order to show cause, which is but another form of notice. When

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tbe application, is based upon tbe provisions of section 3271 notice of motion is required and the application must be made to tbe court and all cases founded on tbe provisions of tbat section are expressly excepted from tbe rule of practice as established by tbe legislature in section 3272, as was held, by this court in Swift v. Wheeler (27 Week. Dig., 512). (See, also, Ryan v. Potter, 4 Civ. Pro. R., 80.) Each of these sections apply to a different class of cases and should be construed separately and independently,

Tbe plaintiff also contends tbat tbe defendant has waived bis right to demand security for costs by proceeding to tbe trial of tbe action without previously demanding tbe same. Tbe right of tbe defendant to demand security for costs of a non-resident plaintiff is an absolute one, not resting in the discretion of tbe court. (Robertson v. Barnum, 29 Hun, 657 ; Buckley v. Gutta Percha etc., Co., 3 N Y. Civ. Pro. R., 429; Ryan v. Potter, 4 Civ. Pro. R., 80, and note thereto; McDonald v. Peet, 7 id., 200.)

Tbe defendant may waive bis right by laches in not moving with promptness, and for that reason tbe court may, in a proper case, deny tbe application, but if tbe delay is excused tbe court has tbe power, at any time before final judgment, to require tbe plaintiff to file tbe security required by tbe statute as a condition to tbe further prosecution of the action. An appeal is the commencement of a new proceeding in tbe action after its determination by tbe rendition of a final judgment, and is distinct from tbat which resulted in its recovery In Gifford v. Rising (decided by this court in March, 1888, and reported in 48 Hun, 128 ) it was held tbat tbe defendant bad the right to demand security for costs on appeal by tbe plaintiff afte1’ judgment in bis favor, although be bad omitted to make any previous demand for the filing of security.

In tbe order appealed from tbe plaintiff was required to give security for tbe costs which had already accrued, and for those tbat might be awarded against him on appeal, and we think, under tbe statute, tbe court, in its discretion, bad tbe power to require security for the payment of the costs which bad already acci’ued as well as those tbat might be thereafter awarded against the plaintiff. It was held in Gedney v. Purdy ( 47 N. Y., 676 ), tbat a court of original jurisdiction may, in its discretion, require a non-resident plaintiff to give security for costs already accrued or entered on the judgment

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appealed from, as well as tliose wliicli should thereafter accrue, or limit the security to the costs that should accrue in the future. The defendant might be willing to take the risk of collecting the costs from a non-resident plaintiff without security up to and including the trial, but not as to future costs which might be awarded against him on appeal.

In this stage of the proceedings the court may require security for the costs which have already, as well as those which may thereafter accrue, but as so much of the order as required security for costs before final judgment rested in the discretion of the court under the circumstances of the case, we think the plaintiff was ■entitled to notice, and that it was irregular to grant the order in that respect upon an exporte application.

The order appealed from should be reversed, ana the original erder modified so as to require security for costs after judgment enly, without costs of this appeal to either party.

Haight, Bradley and Dwight, JJ., concurred.

Order appealed from reversed and original order modified so as to require security for costs after judgment only, without costs of this appeal to either party.