Gelch v. Barnaby — 14 N.Y. Super. Ct. 657

Majority

p. 657

Gelch v. Barnaby.

Headnote

A non-resident plaintiff, in an action to recover the possession-of personal property, took proceedings in the action, under § 209 of the Code, to procure the property to be delivered to her, and gave to the Sheriff the undertaking prescribed by that section; and thereupon the defendant obtained a return of the property, under §211.

Held, that the plaintiff might be required to file security for costs, notwithstanding she had already given an undertaking, under and conforming to § 909. Whether the defendant, after obtaining a return of the property, can maintain an action, upon the plaintiff’s undertaking,—quaere ?

(At Chambers,

July, 1858,

before Bosworth, J.)

The defendant moves, that the plaintiff, being a non-resident, be required to file security for costs. The facts are stated in the opinion.

T. W. Barnaby, for the motion.

E. J. Porter, contra.

The defendant moves for an order, that the plaintiff file security for costs, on the ground that she has become a resident of Hew Jersey, since the action was comm enced. The motion is opposed on the ground that this action is brought to recover possession of personal property, and that the plaintiff gave an undertaking with sureties, such as is prescribed by section 209 of the Code. To this, it is answered, that the defendant required and obtained a return of the properly, by executing, with sureties, such an undertaking as is provided for, by section 211 of the Code.

p. 658

The Supreme Court held, in Rogers v. Hitchcock, that a plaintiff in replevin, who had executed the proper bond, would not be compelled to give a further bond as security for costs, although not a resident of this State, ( 9 Wend. 462 .) This was, probably, so decided on the ground, that a bond under 2 R. S. 523, § 7, was as broad as a bond under 2 R. S. 620, § 4; and that, by the bond first given, the defendant had been firmished with all the security, to which 2 R. S. 620, entitled him.

The Revised Statutes did not enable a defendant, in a replevin suit, to procure a return of the property to himself, by merely demanding it and giving prescribed security.

There is much, in the provisions of the Code, in support of the proposition, that, when a defendant, in an action to recover the possession of personal property, requires a return of it to himself and complies with section 211 of the Code, he thereby loses and is deprived of all right to bring an action for any purpose, on the undertaking given by the plaintiff to obtain the possession, pendente lite.

If the defendant succeeds, the only judgment he can recover, is one for costs. It may, at least, be said, that the Code does not in terms allow him to assess damages for the temporary interruption of Ms possession. (Code, 277.)

It is quite clear, that the rights of the defendant, in a suit upon the plaintiff’s undertaking, may be very different from tho'se of a defendant upon a bond given by the plaintiff in an action of replevin under the Revised Statutes. I think, therefore, that the plaintiff is not ■ exempted from liability to file security for costs, because she gave an undertaking under section 209 of the Code, nor because she does not intend to reside permanently in Hew Jersey. Security for costs must be filed in twenty days.