52 N.Y.S. 350 | N.Y. App. Div. | 1898
The defendant was clearly entitled to security for costs. The complaint alleges that the plaintiff is a foreign corporation. The defendant moved before answer, and his practice was entirely regular. The ground upon which his order was vacated was that he had failed to show a sufficient cause for his delay in moving. He had,. it seems, obtained extensions of time to answer covering a period of some seven months. It appears, however, without contradiction that almost as soon as the complaint was served the plaintiff desired to withdraw it. The defendant refused to consent to such withdrawal unless a release ivere given him. This was in June, 1897, and he was unable, during the ensuing vacation, to obtain from the plaintiff a definite answer upon the subject. The attorney who was in charge of the plaintiff’s case was absent or out of town, and for one reason or another a reply as to the release could not be obtained.
Laches cannot be predicated of a delay thus caused by negotiations for a discontinuance. When the defendant found that he
The order appealed from should be reversed, with ten dollars costs and disbursements, and-the motion to vacate denied, with ten dollars costs.
Rumsey, Ingraham and McLaughlin, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.