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Castellanos v. Jones

6 N.Y. Super. Ct. 679 4 Sandf. 679 Court N.Y. Super. Ct. Decision date 1851-11-29 English

Decision Majority — Oakley, Ch. J., · Concurring — Duer and. Sand-, ford, Justices.)

Contents
p. 679
Castellanos v. Jones.

Headnote

Where security for costs has been filed pursuant to an order, and twenty days have elapsed without objection to the amount of the bond, the court will not entertain an application for an increase of the amount of the. security.
November 29, 1851.
The defendant obtained an ex parte order requiring tbe plaintiff, a non-resident, to file security for costs. The plaintiff’s attorney immediately prepared and filed as such security a bond in the penalty of $250, notified the same to the defendant, and proceeded to trial. No exception or objection was taken to the bond or the sureties. More than twenty days after notice of filing it was served, the defendant moved, that the plaintiff should give further or additional security for costs, on affidavits showing that the defendant’s costs in the suit were already greatly beyond $250, and that the plaintiff was proceeding to obtain a new trial.
A. L. Brown, for the defendant.
H. P. Hastings, for the plaintiff.

(with the concurrence of

The question is, whether the court will entertain, this application after twenty days have elapsed without objection to the bond, and after considering the point we conclude that the motion should not be granted.

When a bond is executed in the lowest penalty that the stat-; ute prescribes, (2 R. S. 620,) and the defendant does not object to it within the time permitted him for excepting to the sureties, he will not afterwards be heard to object to the amount. We will not say that we will not order the penalty to be larger on sufficient cause shown in the first instance, but here the party comes too late.

Motion denied.