Glover v. Cuming — 12 Wend. 295

Majority

p. 295

Glover vs. Cuming.

Headnote

If a plaintiff, laid under a rule to fil e security for costs, does not forthwith comply with the same, the defendant maj' apply for judgment of non-pros: in this case an application made within eleven days after service of the rule was sustained.

It seems, however, that on receiving notice of the motion for judgment of non-pros, the plaintiff may still comply on paying costs of the motion; or if necessary, obtain an extension of time to file the required security.

Motion for judgment of non-pros for not filing security for costs. On the ninth of February last the defendant obtained a rule at the special term of this court, that the plaintiff file security for (he defendant’s costs, and that in the mean time all proceedings on the part of the plaintiff be stayed. The rule was duly served on the seventeenth day of February, and on the twenty-eighth of the same month, the plaintiff, on an affidavit that no security for costs had been filed, gave notice of this motion. On the part of the plaintiff it was contended that such practice was not known in this court; that the only mode in which the plaintiff could be put out of court was to ndit-prós him for not declaring, or the like, if the cause was

March 19.

p. 296

not at issue, or if issue was -joined, to move for judgment as in case ot nonsuit, tor the plaintiff s omission to bring the cause to trial,

By the Court,

I consider the practice of the defendant in this case entirely regular, and am satisfied that judgments of non-pros have frequently been granted on similar applications, although no cases are found reported. Cases, however, are reported where such judgments have been granted for the omission of a plaintiff to deliver a bill of particulars, and the proceedings in these cases are deemed strictly analogous ; in neither case can the plaintiff proceed in his suit until he has complied with the order of the court. Besides, no reason is perceived why a defendant, after tying up his adversary, should be compelled to incur the expense of any proceedings,besides those absolutely necessary to put the plaintiff out of court by a direct motion for that purpose. On receiving notice of the motion for judgment of non-pros, the plaintiff may still comply with the order to file security for costs, on paying the costs of the motion; or if cause can be shown for enlarging the time to file security, no doubt time will be extended for that purpose. The defendant, therefore, is entitled to his motion; but as the practice does not appear to have been settled, it is granted conditionally, unless the plaintiff within 20 days file security for costs ; and no costs of this motion are allowed. Whatever doubt may have been entertained heretofore, none will exist hereafter, as to the practice in a case like this, as the practice of the defendant in this case is approved by the court.