Meaney v. Post & McCord

102 N.Y.S. 611 | N.Y. App. Div. | 1907

Clarke, J.:

This action was brought to recover damages for personal injuries resulting in the death of the plaintiff’s intestate by reason of the alleged negligence of the defendant. The summons and complaint were served on the 13th day of Septembér, 1906. On the 19th day . of November, 1906, prior to -the last day to plead, an order to show cause was obtained why an order should not be made requiring the plaintiff to furnish security for costs on the ground that the action was brought by an administrator in his representative capacity and that he and all of the next of kin prior to and up to the commencement of the action were non-residents. The motion having been denied, defendant appeals.

It was established without dispute that the plaintiff and all the next of kin of the deceased had resided for many years and still reside in the city of Camden, N. J., and that the decedent Avas unmarried and left nó children or children of deceased children. and the only asset in this State was the cause of action against the defendant. Pursley v. Rodgers (44 App. Div. 139) is directly in-point. In that case the plaintiff, a resident of Virginia, was appointed administratrix in Mew York county and in her representative capacity for the benefit of the next of kin, all of whom resided in the State of Virginia, she commenced an action in Mew York. It appeared that the intestate left no property in Mew York and that the letters were issued simply to permit the administratrix to begin an action for damages for the death of her intestate caused by the alleged negligence of the defendant. .Upon these facts the attorney for the defendant Rodgers moved for an order requiring the plaintiff to file security for costs. The motion was denied, and upon appeal to this'court the order entered thereon was'reversed and the motion granted-. Mr. Justice Barrett said: “We thus have a case where the plaintiff and all the parties whom she represents are nonresidents of this State and where there is apparently mo estate or property of any kind within our jurisdiction (or indeed elsewhere), from which costs in case the plaintiff should fail in the action could be collected. We think that these facts entitled the defendant to the favorable exercise of the court’s discretion; that the application was addressed to that discretion, and that the defendant’s motion for security should have been granted j ” and Mr. Justice Ingraham, concurring, said: “But where the action is brought by one individual for the benefit of other individuals, and both the one bringing the action and the ones for whose benefit it is brought are non-residents, no one interested in the recovery in any manner being a resident, I cannot see upon what principle it can be-said that the plaintiffs are not non-residents.”

The respondent cites McNeil v. Merriam (57 App. Div. 164). That case was in the -second department, and. is distinguishable from the ease at bar both because the order directing the plaintiff to give security for costs had been entered ex parte and because no question of non-residence seems to have- been presented. The learned court said: “When the defendant invokes discretion under section 3271,^* he must apply to the court and necessarily upon notice. (Pursley v. Rodgers, 44 App. Div, 139, 142.) In the absence of such procedure this court will not presume that plaintiff’s attorney has waived any of the rights of his client in support of an order which may deprive the plaintiff of the power of enforcing a meritorious claim.” Davidson v. Rose (57 App. Div. 212) was also a decision of the second department, and is also distinguishable from the case at bar by the failure of the papers tó establish the non-residence of the plaintiff to the satisfaction of the court. The court said: “ It will hardly require discussion to determine that this affidavit contains none of the elements of legal evidence, and is not a proper basis of an order to give security for costs on the ground that the plaintiff is a non-resident,”

It appearing, therefore, that the rule as laid down in Pursley v. Rodgers (supra) has not been affected by any subsequent decision of the Court of Appeals, or of the Appellate Division, in this or any other department, and satisfied as we are of the soundness of that rule, it must be applied in the case before us.

The order appealed from should be reversed, with .ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Patteeson, P. J., Ingeaham, Lattghlin and Scott, JJ.,,concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order filed.

* Code Civ. Proc. §3271.— [Rep.