85 N.Y.S. 25 | N.Y. App. Div. | 1903
Dissenting Opinion
If the conclusion reached by the learned presiding justice be right, the bond already given as additional security was one which the court was unauthorized to order, and, therefore, is apparently without consideration and void. I apprehend there are many such bonds in the State which would be rendered void within the rule laid down in the prevailing opinion. While these considerations neither add to nor take away from the statute they should lead us to a most careful consideration of the question presented.
By section 3268 of the Code of Civil Procedure the defendant has the. absolute right to security for costs where, as in this case, the plaintiff is a non-resident. Section 3272 provides for the order requiring such security. By section 3275, if the sureties upon the undertaking are objected to, the judge must make examination and allow or disallow the undertaking. If the sureties are not excepted to “ the undertaking is deemed allowed.” By section 3278 it is provided that where a defendant is entitled to require security for costs as prescribed in section 3268, the plaintiff’s attorney is liable for the defendant’s costs to an amount not exceeding $100. It is then provided, “ The plaintiff’s attorney may relieve himself from that liability although the defendant has not required security for costs to be given by filing and procuring the allowance of an undertaking as if an order had been made as prescribed in section 3272 of this act.” Section 3276 then provides; "At any time after the allowance of an undertaking given pursuant to such an order, or as prescribed in section 3278 of this act * * * the court * * * . upon satisfactory proof by affidavit that the sum specified in the undertaking * ■■ - is insufficient * * * must make an order requiring the plaintiff to give an additional undertaking * * In the prevailing opinion the rule is held that where the plaintiff has voluntarily given an undertaking satisfactory to the defendant, and which has been accepted by him, the court is powerless to require additional security for costs. In other words, in order to protect his right to require additional security for costs,, the defendant must refuse the undertaking offered voluntarily by the plaintiff and get an order to which he is entitled as matter of right, requiring the plaintiff to give him the very undertaking which he has refused to accept. To my mind this construction allows the letter of the law
The learned presiding justice bases his opinion upon the decision in the case of Republic of Honduras v. Soto (112 N. Y. 310). The provision of section 3276 of the Code at that time provided for an application for additional security only after an undertaking had been given as prescribed in the statute. It omitted the provision which has since been inserted authorizing the application for additional security where a deposit had been made which was insufficient. The Court of Appeals, reversing the General Term, there held that additional security could only be given where an undertaking had been
But granting, for the argument, the correctness of the strict interpretation given to the statute in the prevailing opinion,. I still think this order should be affirmed. In the papers before the court all the facts appear. The defendant asked in his notice of motion not only for additional security, but for other relief to which he might be entitled. The Special Term might, upon that motion, have made an order requiring the defendant to give security for costs nunc pro timo as of a date prior to the first undertaking that was given, and such an undertaking would in that case be deemed'in law to have been given pursuant to such order to satisfy the conditions of this statute. Not only could this’ provision have been inserted by the Special Term, but this court may modify the order to include such provision and affirm the same as modified, and this, in my judgment, should be done, if necessary, to the affirmance of this order.
Order reversed, with ten dollars costs and disbursements.
Lead Opinion
The court has no authority to make an order for “ additional ” security for costs, save that given it by section 3276 of the Code. By the plain provisions of such section such an, order may be made ■after the allowance of an undertaking given pursuant to an order of the court, or after notice of the payment of money into court pursuant to am, order thereof. The fact that a prior order has been made determining' the liability of. the plaintiff to file security for ■costs, seems to be a condition precedent to the granting of “ additional security ” under this section. Concededly, no such order has been previously made. The first application to the court for security in this action is the one now before us, and the first order made ■on the subject is the one appealed from. I,t purports to have been made pursuant to section 3276, and assumes to give additional security. I am of the opinion that it was not warranted by such section, and that the principle upon which the decision in Republic of Honduras v. Soto (112 N. Y. 310, 312) is based is a clear authority for that conclusion.
The order appealed from should be reversed, with costs.
All concurred, except Smith, J., dissenting in opinion; Hough-TOh, J., not. sitting. .