Corbett v. Brantingham

72 N.Y.S. 763 | N.Y. App. Div. | 1901

Ingraham, J. :

It is apparent that the defendant, by failing to obtain an order requiring the plaintiff to give security for costs before answer, waived the absolute right to require her to give such security ; and unless facts were shown to excuse a failure to make the application before the defendant answered, such security should be denied. We also think it much better practice where such security is not required until after answer has been served, that the motion for security should be made upon notice to the other side. Here, however, it is not disputed but that the plaintiff was a non-resident prior to the commencement of the action ; and the defendant, although she had waived the absolute right to an order requiring the plaintiff to give security for costs, had obtained such an order. Upon the motion to vacate that order,' the question before the court was whether or not the plaintiff should be required to give such security ; and if upon the facts there appearing the court should have directed that such security be given, it would be a senseless proceeding to vacate the order which requires such security and compel the defendant to make another motion for the relief to which she was plainly entitled. The court should not try to multiply motions and encourage a practice which could simply result in imposing motion costs.

The Special Term, before granting an ex parte application compelling the plaintiff to furnish security for costs, might properly require proof that the answer had not been interposed by the party .applying for the order for such security; but the real question before the court below was whether or not the plaintiff should be required to give such security, and that question, I think, should have been determined by the court upon the affidavits before it. While we have held that a defendant waives his absolute right to require security, an order for such security after answer is not void. In none of the eases have we held that where it clearly appeared that the defendant was entitled to an order for such security the court was justified in refusing that relief. In Segal v. Cauldwell (22 App. Div. 95) we affirmed the action of the court in granting such security where an excuse for the delay was shown; and in Henderson, Hull & Co. v. McNally (33 App. Div. 132) we reversed an order granting such security because no excuse was shown, as in that case it appeared from the complaint that the plaintiff was a foreign corporation, and the defendant, therefore, had knowledge of the fact when he served his answer. In Johnson v. Met. St. Ry. Co. (56. App. Div. 286), upon which the court bases the order appealed from, we reversed an order which refused to require the plaintiff to give the security, as in that case the order was obtained before the answer was served.

We think that the failure of the defendant to apply before answer was served was excused. The amended and supplemental summons and complaint were served on the eighth of June. Before that time the defendant’s attorney had endeavored to ascertain the address of the plaintiff, but had been informed at her late address, which was in the city of New York, that she had gone to some place in the country. The place, however, was not disclosed. On the twenty-fifth of June the defendant served upon the plaintiff a notice requiring the plaintiff to give security for costs, and on the same day served a copy of the answer; on the following day he received a letter from the plaintiff’s attorney, stating that the plaintiff was a resident of this State ; and on the twenty-ninth of June one of the plaintiff’s attorneys wrote to the defendant’s attorney stating that they were unable to give the New York address of the plaintiff, but would probably have the information within ten days. Upon subsequent investigation, the defendant’s attorney ascertained that the plaintiff had removed to Massachusetts, and on July fifth the order requiring the plaintiff to give security was obtained.

We think that the failure of the defendant to move before service of the answer was excused, and that the plaintiff should be required to furnish the security.

It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., and Laughlin, J., concurred ; Patterson and Hatch, JJ., dissented.-

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.