39 A.D. 129 | N.Y. App. Div. | 1899
The right of the defendant to require the plaintiff, a non-resident, to give security for costs is absolute (Wood v. Blodgett, 49 Hun, 64; Churchman v. Merritt, 50 id. 270), unless waived by laches. The defendant moved as soon as she learned of the non-residence. The fact that, in the verification of the. complaint made by. the agent of the plaintiff, it is stated “ that the reason why this verification is not made by the plaintiff is that said plaintiff is not now within the county of Saratoga nor within the State of New York,” does not give the defendant notice of the non-residence of the plaintiff, but rather that the absence of the plaintiff is temporary.
We think that the plaintiff was not guilty of laches and was entitled to an order requiring the plaintiff to give security.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion for security granted.