Smith v. Norval — 4 N.Y. Super. Ct. 653

Majority

p. 653

Smith and another v. Norval.

Headnote

A bond as security for costs, conditioned that the plaintiffs shall pay to the defendants the costs which he might recover in the suit, is a sufficient compliance with the statute which requires a bond conditioned to pay, oil demand, all costs that may be awarded to the defendant in such suit.

July, 1849.

Appeal from an order at chambers, denying a motion made by the defendant to take from the files as irregular, a bond given as security for costs under an order of the court for that purpose. The plaintiffs were non-resident. The condition of the bond filed was, that if the plaintiffs should pay to the defendant the costs which he might recover in the suit, the bond should be void.

p. 654

C. S. Roe, for the defendant.

A. Child, for the plaintiffs.

The statute prescribes that security for costs shall be given in the form of a bond in the penalty of at least $250, <fcc., “ conditioned to pay, on demand, all costs that may be awarded to the defendant in such suit.” (2 R. S. 620, § 4.) This bond, it is true, does not pursue the language of the statute, but so far as it differs, it is more favorable to the defendant than the form prescribed. The obligors will be liable immediately, if the defendant’s costs are not paid as soon as he obtains a judgment. The spirit of the statute is fully carried out by this condition, and we think it a sufficient compliance.

Order affirmed.