16 N.Y.S. 800 | The Superior Court of the City of New York and Buffalo | 1891
It is well settled that defendant’s right to demand security for costs, under section 3268 of the Code, from a non-resident plaintiff, is absolute, unless defendant waives that right by loches, in which case it becomes discretionary with the court to grant the motion, upon defendant’s satisfactory explanation of his delay. See Buckley v. Gutta-Percha Co., 3 Civil Proc. R. 428; Churchman v. Merritt, (Sup.) 2 N. Y. Supp. 843; Wood v. Blodgett, Id. 304; Robertson v. Barnum, 29 Hun, 657; Healy v. Railway Co., 1 Civil Proc. R. 15; Abell v. Bradner, 3 N. Y. Supp. 20; Kleinpeter v. Enell, 2 Civil Proc. R. 21; Ryan v. Potter, 4 Civil Proc. R. 80. It has also been held that, if the plaintiff was a non-resident at the commencement of the action, he is not excused from giving security for costs by subsequently becoming a resident. See Ambler v. Ambler, 8 Abb. Pr. 340. In the present case, assuming the plaintiff Sims was a non-resident of the state at the time of the commencement of the action,—of which there seems to be some doubt,—were .the defendants guilty of loches in making their motion for security? There
The addition of two, presumably resident, plaintiffs affects adversely the defendants’ claim. The action was commenced in the name of George V. Sims alone, who, as the defendants insist, was then a non-resident. Subsequently, on April 13th, an order was entered making Gulliver and Ellen T. Sims additional plaintiffs, both of whom, in the absence of any claim to the, contrary, must be presumed to be residents. See Fisher v. Charter Oak Co., 14 Abb. N. C. 32. Afterwards, and on July 24th, the defendants made their motion for security. There were then at least two resident plaintiffs, and the defendants must take the case as it stood when they made their motion. Consequently, under section 3270 of the Code,
Code Civil Proc. N. Y. 3270, provides, with respect to motions for security for costs, that, “if there are two or more plaintiffs, the defendant cannot require security for costs to be given unless he is entitled to require it of all the plaintiffs. ”