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identify the property affected — as, for instance] to procure an adjudication upon the construction of the will of one M. N., in which this petitioner is sole legatee, and to declare the same void; as more fully appears by a copy of the complaint herein, and of said will, hereto annexed.
II. That the summons and complaint was served on your petitioner on the day of ,19 ; and the time within which your petitioner is required to appear and plead, will not expire until the day of
[or otherwise state the condition of the cause].
III. That your petitioner has fully and fairly stated he case to M. N., a counselor of this court, who resides at
and whose certificate is hereto annexed; and your petitioner has a good and substantial defense on the merits to said action, as he is advised by said counsel, after such statement, and verily believes.
IV. That your petitioner is not worth one hundred dollars, besides the wearing apparel (and furniture40] necessary for himself (and his family4], and besides the [legacy] which is the subject of the action, and is unable to defend such action unless admitted to do so as a poor person.
WHEREFORE, he asks leave to defend said action as a poor person, and that the court will assign him attorney and counsel to conduct his defense. [Date.]
[Signatures.] [Verification as in Form vo. 193, p. 326. Certificate of counsel as in Form No. 329, substituting“ defense” for “ cause of action.”]
[Order to show cause or notice of motion, see Forms Nos. 186, 187.] 41
[Order granting or refusing motion, stipulation of counsel to serve without compensation, as in Forms Nos. 330 to 332, substituting “ defense” for “cause of action," " defend” for “ prosecute,” etc.]
40 If he has none, omit these clauses,
41 If an order to show cause is
taken, add statement as to previous application, and show necessity for order.
FORM No. 500.
Affidavit to move to vacate leave to sue, etc. [Title of court and action.] [Venue.]
Y. Z., being duly sworn, says:
1. That he is the defendant in this action; that he is informed and believes that prior to the commencement of [or, pending] this action, and on or about the day of
, 19 , upon application to the court, an order was duly granted and entered herein, allowing plaintiff to prosecute this action as a poor person.
II. That thereafter, and on or about the day of 19, issue was joined herein by the service of deponent's verified answer to the complaint of the plaintiff.
more than laintiff has issue has the ca
proper cond he calendar pan. this have
III. That although more than months have elapsed since such joinder of issue, the plaintiff has taken no step to bring this action to trial; that no note of the issue has ever been filed by plaintiff, nor has he ever noticed or moved the cause for trial; and that younger issues than this have been tried in their regular order on the calendar of this court42 [or state other delay or improper conduct of plaintiff; and if any irregularity in obtaining leave is relied on, state it here, and also in the notice of motion]. [Jurat.]
[Signature.] FORM No. 501. Order vacating leave to sue as poor person.
At a Special Term [etc. See p. 255]. [Title of cause.] On reading and filing the notice of motion dated the day of
, 19 , and the affidavit of Y. Z., the defendant, verified the day of , 19 , thereto annexed, and proof of the due service thereof upon plaintiff's attorney, and it appearing to the satisfaction of the court that the plaintiff herein has been guilty of improper conduct in the prosecution of his action, to wit, [state it briefly,- or, has been guilty of wilful and unnecessary delay herein).
Now, after hearing Z. T., attorney for the defendant for the
42 An order allowing a suit in forma pauperis will be vacated on motion for willful or unnecessary de
lay in bringing the cause to trial. Steele v. Mott, 20 Wend. 679; N. Y. Code Civ. Pro., § 462.
motion, and A. T. (or, no one appearing] in opposition; and on motion of said Z. T.: ORDERED, that the order entered herein on the day of
, 19 , granting leare to plaintiff to prosecute this action as a poor person, be and the same herrby is vacated and annulled.
Enter: [initials of name and tille of judge.]
SECURITY FOR Costs.
1. Power of the court.
5. The practice.
1. Power of the court.] — The inherent power of a court of record of general jurisdiction to control its own proceedings, enables it to require security for costs in its discretion from plaintiffs who are non-residents or insolvent, and the like, or who are seeking a favor. 43
The practice is now regulated by statute, and the statute has sometimes, in later cases, in courts of minor authority, been regarded as the sole source of the power of the court.
The statute* may properly be considered as modifying the power of the court to this extent, that it gives a defendant an absolute right to security in certain cases, 45 and limits the amount of the security, 46 and entitles the plaintiff to make a deposit or give an undertaking at his election; but in cases not provided for, the power of the court is still inherent and discretionary. 47
Security may be required at any time during the progress of the action, and after judgment and pending appeal, and may include costs already accrued, or only those thereafter to accrue. 48
43 Knoch 1. Funke, 28 Abb. N. C. 240, 22 Civ. Pro. 161. Cases are very fully collected and well analyzed in a note to Ryan v. Potter, 4 Civ. Pro. Rep. (Browne) 82.
Surrogates' courts are held not included in the New York statute. Loesche v. Griffin, 3 Dem. 358.
44 In New York: N. Y. Code Civ, Pro., 88 3268, 3279.
46 Robertson v. Barnum, 29 Hun, 657; Turell v. Erie R. Co., 47 App. Div. 639, 62 N. Y. Supp. 417; Gates v. McDonald, 14 N. Y. Supp. 907, 39 St. Rep. 128.
47 An exception has been asserted in cases of derivative jurisdiction, and the like, where an action, originally brought in an inferior court not having this power, has been removed into a court having such power under the statute.
Thus, in Mellen v. Hutchins, 58 How. Pr. 349, it was held that a non-resident plaintiff cannot be required to give security for costs in an action brought in a justice's court or municipal court (in this case municipal court of Rochester, which is not a court of record) upon an appeal by defendant to the county court. The action must have been begun in a court of record. But the soundness of this doctrine in its application to a court of general jurisdiction is doubtful.
48 Wood v. Blodgett, 49 Hun, 64, 15 Civ, Pro. 114.
2. Laches.] — Delay to move for security for costs, especially if the effect is that the motion is made at a time when it interrupts or delays the plaintiff's proceedings, is good ground for denying the motion. The right of the defendant, in those cases where he is regarded as having a right to security for costs, is waived by not applying promptly after the facts on which the application is founded are known to him."
In the Appellate Division for the first department, the rule is established that the defendant's absolute right to compel a nonresident plaintiff to give security is waived unless asserted before answer, that a subsequent application is addressed to the discretion of the court, and facts must be shown to excuse the delay. 50 This rule is not followed in the third department.51
Laches cannot be predicated upon a delay in discovering plaintiff to have become insolvent pending the action.52
The application may be entertained, in the discretion of the court or judge, at any stage of the litigation,53 and even after laches amounting to a waiver, which would justify denying the motion, the court or judge has power to grant it.54
49 Gibbons r. Bush Co., 98 App. Div. 283, 90 N. Y. Supp. 603 (waiver by waiting twenty months after action commenced, although answer not yet served, but complaint served eighteen months before motion).
Johnston r. Met. St. Ry. Co., 56 App. Div. 286, 67 N. Y. Supp. 855; Cooke 0. Same, 59 App. Div. 154, 69 N. Y. Supp. 4 (no waiver results from delar between service of the summons and the complaint, under extensions procured by plaintiff).
* 60 Henderson, etc., Co. v. McNally, 33 App. Div. 132, 53 N. Y. Supp. 351, 6 Anno. Cas. 166, 28 Civ. Pro. 174 (application denied, when made after issue joined and noticed for trial by both sides, and where ground was that complaint showed plaintiff a foreign corporation). Segal v. Cauldwell, 22 App. Div. 95, 47 N. Y. Supp. 839 (delay occurring during summer vacation held sufficient excuse to warrant exercise of discretion at Special Term). See, also, Stevenson r. N. Y., L. E. & W. R. R. Co., 49 Hun, 169 (failure to show that defendant had no knowledge of plaintiff's non-residence before answer served, fatal to application). Kelley v. Kremer, 74 App. Div. 456, 77 N. Y. Supp. 515, 11 Anno. Cas. 304 (it is no excuse that defendant could not obtain a stipulation extending time to answer, and that court for ex parte business was not in session - it not appearing that defendant had endeavored to find a judge, and served the answer with full knowledge). Boyd v. U. S. Mtge. & T. Co., 90 App. Div. 33, 85 N. Y. Supp. 589 (where issue was joined, but an amended complaint served charging defendant in a different capacity, held, that his right to demand security was not waived).
51 Wickser v. Village of Elmira Heights, 42 App. Div. 426, 59 N. Y. Supp. 130.
52 Donnelly v. Third Ave. R. Co., 112 App. Div. 648, 98 N. Y. Supp. 387. 53 Gedney v. Purdy, 47 N. Y. 676. 64 Robertson v. Barnum, 29 Hun, 657.
In Hugunin v. Thatcher, 18 Fed. Rep. 105, it was held that the time within which a defendant shall make his demand for security for costs, from a non