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Krom v. Kursheedt

51 N.Y. Super. Ct. 119 19 Jones & S. 119 Court N.Y. Super. Ct. Decision date 1884-12-01 English

Delivered by Freedman, J.

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p. 119
STEPHEN R. KROM v. ASHER KURSHEEDT.

Headnote

Security for costs—Non-residence, what is. under statute—Liability of attorney.
Under § 3278, Code Civ. Proc.,—making the attorney liable for costs to the extent of $100, where security has not been given on behalf of a non-
. resident plaintiff,—if the plaintiff and his family are domiciled in another state, he is deemed a non-resident, though at the time the action was begun, and for many years previous hewas engaged in business in New York city.
That the attorney brought the action in good faith, supposing plaintiff re
p. 120
sided here, is no defense to his liability, nor is the omission of the defendant to demand security during the pending of the action, a defense.
Before Sedgwick, Oh. J., Van Vorst and Freedman, JJ.
Decided December 1, 1884.
Appeal from order.
The facts appear in the opinion.
A. B. Moore, for appellant.
M. A. Kursheedt, for respondent.

By the Court.

This is an appeal by George F. Wellman, the attorney for the plaintiff, from an order requiring him as such attorney, to pay to the defendent the sum of $100, on account of the costs awarded to the defendant in the action. At the time of the commencement of the action, the plaintiff resided with his family at Plainfield, New Jersey, and he still continues to reside there.

By section 3268 of the Code of Oivil Procedure, the defendant may require security for costs to be given where the plaintiff was, when the action was commenced, a person residing without the state, and by section 3278 the plaintiffs’ attorney in such a case is made liable for the defendant’s costs to an amount not exceeding $100, until security is given as prescribed, although the defendant has not required such security to be given.

It is claimed, however, by the appellant that because it was made to appear by affidavit that, at the time of the commencement of the action, the plaintiff had been engaged in business in the city of New York for about sixteen years, he was not a non-resident wdthin the meaning of section 3268, though he and his family were domiciled in another state.

After a careful examination of the cases cited to illustrate the distinction between residence and domicile, and conceding that a person can have a residence in one state and his domicile in another, I fail to see how the appellant

p. 121
can be relieved. Mere presence in the state during business hours has never yet been held to constitute residence. On the contrary, in the enforcement of our attachment laws against non-residents, it has repeatedly been held that presence during business hours in this state does not amount to residence (Wallace v. Castle, 68 N. Y. 370 ; Chaine v. Wilson, 1 Bosw. 673 ; Barry v. Bockover, 6 Abb. 374 ).

In the absence, therefore, of a statutory provision making presence during business hours in this state equivalent to residence in the construction of section 3268, the order appealed from was fully warranted by the facts shown to the court below.

It is no answer, under section 3278, that the appellant ' commenced the action in good faith and in the belief that the plaintiff and his family were domiciled in New York. Nor does the omission of the defendant to demand security for costs during the pendency of the action affect the attorney’s liability (Matter of David Levy, 10 Daly, 391 ).

There being no merit in any of the points raised by the appellant, the order appealed from should be affirmed with costs, &c.

Sedgwick, Ch. J., and Van Vorst, J., concurred.

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