2 N.Y.S. 304 | N.Y. Sup. Ct. | 1888
The defendant, in an action where the plaintiff is a non resident of the state, may require him to give security for costs, as provided in section 3268 of the Code of Civil Procedure. The amount and form of the security is determined by the provisions of section 3272, and the order requiring the security to be given may be granted by the court in which the action is pending, or by a judge thereof, on an ex parte application of the defendant, upon.due proof being made of the necessary facts entitling the defendant to the same. The language employed in section 3272 is mandatory, and admits of no other construction. Robertson v. Barnum, 29 Hun, 657; McDonald v. Peet, 7 Civ. Proc. R. 200. That the plaintiff is not entitled to notice when the application is founded upon the provisions of section 3272 is the construction which has been placed upon this section by the special terms and judges at chamber in this department, in which we concur as the correct interpretation. The statute in this respect has changed the general rule of the court requiring all notices brought before the court to be on notice, or an order to show cause, which is but another form of notice. When the application is based upon the provisions of section 3271, notice of motion is required, and the application must be made to the court; and all cases founded on the provisions of that section are expressly excepted from the rule of practice as established by the legislature in section 3272, as was held by this court in Swift v. Wheeler, 27 Wkly. Dig. 512. See, also, Ryan v. Potter, 4 Civ. Proc. R. 80. Each of these sections applies to a different class of cases, and should be construed separately and independently. The plaintiff also contends that the defendant has waived his right to demand security for costs by proceeding to the trial of the action without previously demanding the same. The right of the defendant to demand security for costs of a non-resident plaintiff is an
In the order appealed from the plaintiff was required to give security for the costs which had already accrued, and those that might be avvarded against him on appeal; and we think, under the statute, the court, in its discretion, had the power to require security for the payment of the costs which had already accrued, as well as those that might be thereafter awarded against the plaintiff. It was held in Gedney v. Purdy, 47 N. Y. 676, that a court of original jurisdiction may, in its discretion, require a non-resident plaintiff to give security for costs already accrued or entered on the judgment appealed from, as well as those which should thereafter accrue, or limit the security to the costs that should accrue in the future. The'defendant might be willing to take the risk of collecting the costs from a non-resident plaintiff without security up to and including the trial, but not as to future costs which might be awarded against him on appeal. In this stage of the proceedings the court may require security for the costs which have already accrued, as well as those which may thereafter accrue; but as so much of the order as required security for costs before final judgment rested in the discretion of the court, under the circumstances of the case, we think the plaintiff was entitled to notice, and that it was irregular to grant the order in that respect upon an ex parte application. The order appealed from is reversed, and the original order modified, so as to require security for costs after judgment only, without costs of this appeal to either party. All concur.
