Butler v. Wood

10 How. Pr. 313 | N.Y. Sup. Ct. | 1854

Welles, Justice.

There is some doubt upon the affidavits, whether the plaintiff’s absence was temporary or permanent, so as to make him a non-resident. The motion, however, is denied, upon the ground that the defendant is not in a condition to ask that security for costs be given. There is, what amounts to an interlocutory judgment against him. Until that is got rid of, he can never be entitled to judgment for costs against the plaintiff. All the defendant can attempt to do, until he shall obtain leave to answer, is, to reduce or mitigate the damages. The plaintiff will, in any event, be entitled to, at least, nominal damages, which, in this action, precludes the idea of the defendant recovering costs..

The proceeding to obtain security for costs is founded upon Tit. II., Chap. X., Part III., of the Revised Statutes, (Vol. 2, p. 260,) and the motion in this case is upon § 2 of that statute. It is claimed, that when it is shown that the plaintiff has become a non-resident after the commencement of the action, it is then a statute right of the defendant to require security. This, however, must be understood with some qualification; otherwise the defendant, after judgment perfected against him, might require that execution be stayed until security for costs was filed. This will hardly be contended. The statute must have a reasonable construction; and to require security for costs which the plaintiff can never be liable for, would be unreasonable.

If the defendant should get the default opened, and become entitled to defend the action, he would then, and I think not until then, be in a situation to ask for security.

The order to show cause is discharged, and the motion that the plaintiff file security denied, with $7 costs.