Churchman v. Merritt — 57 N.Y. Sup. Ct. 270

Majority

p. 270

ANNA E. CHURCHMAN, Respondent, v. HANNAH B. MERRITT and Others, Appellants.

Headnote

Bight of a defendant to compel a nonresident plaintiff to file security fov costs is absolute —no discretion is conferred upon the court’by section 8268 of the Oode of Giml Procedure— the order may be made without notice.

On the 22d day of June, 1888, upon an affidavit stating that the plaintiff in this action, which was commenced on June twentieth, was a resident of Pennsylvania, an order was made requiring her to file security for costs; which order was thereafter vacated, upon an affidavit showing that her property was situated'in this State and under the control of at least one of the defendants, and afforded ample security for the costs of the action:

requiring security to he given, should he reversed.

' That section 3268 of the Code of Civil Procedure has vested a defendant with the right to require security for costs to be filed in certain cases, including that of a non-resi • dent plaintiff, and the enactment has been framed in such language as to afford the court no discretion over the application where it is made with due diligence.

Company (1 N. Y. Civ. Pro. R., 15); Buckley v. Q-utta Percha Company (3 id., 428); Robertson v. Barnum ( 29 Hun, 657 ) followed.

employed in the enactment of section 3273 of the Code of Civil Procedure permits the court or judge to make an order requiring security for costs to he given, without notice.

and followed, under section 3 of 2 Revised Statutes (Edm. ed.), 644, which required the order to be made, either upon notice or a preceding order to show cause, is a more judicious mode of proceeding.

Appeal from an order made at tbe New York Special Term and ■entered in tbe office of tbe clerk of tbe city and county of New York, on July 11,1888, vacating an order, requiring tbe plaintiff to file security for costs .

Marshall P. Stafford, for tbe appellants.

James E. Chandler, for tbe respondent.

Tbe action was commenced on tlie 20th of June, 1888, and on tbe twenty-second day of tbe same montli an order was made, upon an affidavit stating tbe plaintiff to be a resident of tbe State of Pennsylvania, requiring ber to file security for costs. Upon an affidavit

p. 271

showing that her property was situated in this State and under the control of at least one of the defendants, and afforded ample security for the costs in this action, the order was vacated. The decision vacating the order, requiring security to be filed, was also based in part upon the authority of Todd v. Marsily, (26 Weekly Dig. 244). But in that case the application for security was denied on account of the unreasonable delay in making it, while no such objection was or could be raised in this case..

Section 3268 of the Code of Civil Procedure has vested the defendant with the right to require security for costs to be filed in certain cases, including that of a non-resident plaintiff, and the enactment has been made in such language as to afford the court no discretion over the application where it may be made with diligence, .and such is the view which has been expressed and followed in decided cases (Healy v. Twenty-third St. Ry. Co., 1 N. Y. Civ. Pro. R., 15; Buckley v. Gutta Percha Co., 3 id., 428); and this construction was referred to as that which the statute should receive, in Robertson v. Barnum ( 29 Hun, 657 ).

It is further confirmed, also, by section 3271 of the Code, providing for other cases in which the court may, in its discretion, require security to be given. Subjecting this authority to the discretion of the court, as it was expressly done by this section, is an indication that it was not intended that the right to security, in the cases previously provided for, should be in any manner dependent upon the discretion of the court, where the application for the order should be made with diligence; and as the defendants were entitled to the order in this instance, they could not be deprived of their right to it by reason of the circumstance that the plaintiff had ample propperty in the State from which the costs of an unsuccessful litigation, on her part, could be collected by the defendants. The right to the order has not been subjected to that condition.

This order was made without notice, but the language employed in the enactment of section 3272 of the Code of Civil Procedure permits that to be done. It is true that this section is no broader than the law as it was contained in the Revised Statutes (2 R. S. [Edm. ed.], 644, § 3), under which the practice prescribed and followed required the order to be made either upon notice or a preceding order to show cause (Champlin v. Pierce, 3 Wend., 445 ).

p. 272

That, undoubtedly, is the more judicious mode of proceeding, but, at the same time, whether it shall be followed, must depend upon the discretion of the court or judge to whom the application may be made. As the law is enacted an absolute order, in the first instance, is not unauthorized.

The order, from which this appeal has been brought, should be reversed, with the usual costs and disbursements, to abide the event of the action.

YaN BruNt, P. J\, and Bartlett, J., concurred.

Judgment reversed, with usual costs and disbursements, to abide the event of the action.