Prior to the Code, the established practice to be pursued, when it was desired to obtain security for costs, was either to obtain a chamber order ex pwte, directing security to-be filed within twenty days, and in the event of security not being filed .within twenty days, then requiring cause to be shown at the first special term to be held after the expiration of said twenty days, why security should not be filed, which order contained a stay of proceedings. On the return-day of the order, if the security had not been previously filed, the motion for security was heard, pursuant to the alternative of the order to show cause. If the motion was granted, a peremptory order to file security was made. This order operated as a stay of proceedings.
If security was not filed within a reasonable time, pursuant to the peremptory order, a motion was made for judgment of nonpros., or the party desiring security might apply in the first instance to the court, on notice to the opposite party, in which event, if the motion was granted, a peremptory order to file security was made in the first instance.
The proceedings in case of not filing security, pursuant to the peremptory order, was then, by a motion, for a nonpros.
There' is no enactment, either of the Code or otherwise, changing the practice.
In this case the order is a chamber order without notice, and is a peremptory order to file security; and in default thereof, to show cause why the complaint should not be dismissed.
This motion cannot be granted without introducing a new course of practice.
Motion denied, without prejudice to defendants’ making a further application for security in a different manner.