« PreviousContinue »
3. Effect of other statutes as to costs.] The power of the court to require security for costs is not taken away by the giving of security as a condition of procuring a provisional remedy; but the fact that such a security - as, for instance, in replevin,--covers the general costs of the cause, may be a reason for refusing to require further security.56
When the claim of a poor person to sue in forma pauperis, and the claim of a defendant to require him to give security for costs conflict, it is in the discretion of the court which shall prevail; for even if the statute as to security for costs be deemed to give defendant a right to demand it, in cases of insolvency generally, the very object of the statute as to suing in forma pauperis, is to create an exemption from all liability for costs in a certain class of cases of pecuniary irresponsibility.56
A person who has been allowed to sue in forma pauperis cannot be required to give security for costs. 57
4. Action by or against representative.] Where a non-resident sues as executor, administrator, etc., under an appointment made by a court of the State, he is not a "person residing without the State” within the statute.5
A plaintiff, suing as trustee, receiver, executor, or other representative party, will not be compelled to file security for costs merely on the ground of insolvency, or that he has no funds in his hands, or the estate has no assets beyond the cause of action; it must appear also that the action is brought in bad faith, or heedlessly, or that plaintiff will not probably succeed.59
resident plaintiff, is not confined to the time before issue is joined, but the defendant may require the security to be filed at any stage of the litigation, provided he is not guilty of laches or bad faith. N. Y. Code Civ. Pro., &$ 3268, 3278, were applied by the Federal court.
55 Vulcanite Cement Co. v. Williams, 46 Misc. 405, 92 N. Y. Supp. 574; Boucher 1. Pia, 14 Abb. Pr. 1 (replevin); and see Wisc. F. & M. Ins. Co. r. Hobbs, 22 How. Pr. 494; McCall v. Frith, 2 Civ. Pro. Rep. (Browne) 9, with note (injunction).
56 See Chapter II, Article VII of this volume; and see Thomas v. Thorwegan, 27 Fed. Rep. 400.
57 Erickson v. Poey, 5 Civ. Pro. Rep. 379; Irving v. Garrity, 13 Abb. N. C. 182; Hotaling v. McKenzie, 7 Civ. Pro. Rep. 321. In these cases the plaintiffs were infants, but upon the reasoning of the two latter cases, a non-resident or an insolvent who had been so allowed could not.
58 Pursley v. Rodgers, 44 App. Div. 139, 61 N. Y. Supp. 1015; Downer v. Carter, 75 App. Div. 630, 78 N. Y. Supp. 1114; Kelly v. Madigan, 88 App. Div. 138, 84 N. Y. Supp. 332.
59 Hale v. Mason, 86 Hun, 499, 33 N. Y. Supp. 789, and cases cited. Ridg. way v. Symons, 14 Misc. 78, 35 N. Y. Supp. 197; Gmaehle v. Rosenberg, 80
Security cannot be required where the action is merely continued by the representative.Ro
5. The practice.] - Where a defendant claims security as a matter of right, the New York statute contemplates an ex parte application to the court, or a judge thereof. There is no objeetion, however, to the making of a motion for security, and such is frequent practice.
When the application invokes the court's discretion in requiring security, it can only be made upon notice. 6
It is not unusual for the defendant's attorney before applying, in cases of right, to give plaintiff's attorney notice that security will be required, and the attorney frequently complies rather than incur the statutory liability for costs which rests upon him personally if security is not given.
Where, after notice of motion for security, defendant receives notice that security has been filed, with a copy of the affidavit of justification, he should countermand his notice. If he persists in moving, he may be charged with costs, 64 though as his right to move for additional security is now held to depend upon having obtained a prior order,65 a formal order it would seem ought to be entered.
6. Additional security.] — The statute which practically limits the amount which defendant can originally require as matter of right, provides against its insufficiency by allowing the court or a judge to make an order for additional security. 66
Apr. Div. 541, 80 N. Y. Supp. 705; Drago v. Kavanagh, 56 App. Div. 179, 67 N. Y. Supp. 622. (Compare Pursley v. Rodgers, 44 App. Div. 139, 61 N. Y. Supp. 1015). Will be required of plaintiff upon prosecuting an appeal from judgment of dismissal. Gifford v. Rising, 48 Hun, 128; Contra, Cowen e. Rouse, 49 Misc. 338.
60 Sullivan r. Rem. Sewing Mach. Co., 27 Hun, 270; Denehy . McCloud, 21 Misc. 541, 47 N. Y. Supp. 741.
61 Pursley v. Rodgers, 44 App. Div. 139, 61 N. Y. Supp. 1015. And has been suggested as the better practice, but this is doubted. Churchman 1. Merritt, 50 Hun, 270, 2 N. Y. Supp. 843.
62 In an action by or against an executor or administrator in his representative capacity, trustee of an express trust a person expressly authorized by statute to sue, etc., official assignee, receiver, committee, etc., in which cases, under N. Y. Code Civ. Pro., $ 3271, the application is to the discretion of the court.
63 Pursley v. Rodgers, supra; Kelley v. Kremer, 74 App. Div. 456, 77 N. Y. Supp. 515, 11 Anno. Cas. 305; Kronfeld v. Liebman, 78 App. Div. 437, 79 N. Y. Sunn. 1083; Wood r. Blodgett, 49 Hun, 64.
64 Micklethwaite r. Rhodes, 4 Sandf. Ch. 434. 65 Dunk r. Dunk, 177 N. Y. 264.
66 N. Y. Code Civ. Pr., $ 3276. Such additional security may be required after a judgment in defendant's favor and pending plaintiff's appeal. Bender v. Paulus, 109 App. Div. 148, 95 N. Y. Supp. 671.
Upon such an application, facts showing its necessity must be stated. It is not enough to allege generally that the security is insufficient.67 The death or insolvency of a surety gives a right to require the additional undertaking.“
It is necessary that the first undertaking or payment into court should have been under an order therefor. 69
If the official or representative character of the plaintiff is such that the original order was discretionary, it is better to apply to the court, not to a judge, if additional security is desired, although the statute authorizes a judge to make the order.
Although such an order is not matter of right, the refusal of it in a proper case is of course reviewable at the Appellate Division.70
7. Vacating order.] — Where an order has been obtained ex parte requiring security, the plaintiff may properly test the question of the defendant's right to the order by motion to vacate on the papers upon which the order was granted. If the facts appearing upon such a motion to vacate disclose a situation invoking the court's discretion to require security, but also show that the ex parte order was unauthorized, the order must be vacated, leaving the defendant to a subsequent motion."
FORMS. 502. Affidavit to obtain security for 507. The same, where plaintiff sues costs from nonresident plain
as trustee in bankruptcy. tiff or relator.
500. The same, in case of insolvency 503. The same, in case of plaintiff or of plaintiff pending suit.
relator, having removed pend 509. The same, where plaintiff is an ing suit.
executor or administrator. 504. The same, where plaintiff is a 510. The same where plaintiff is the foreign corporation.
administrator with the will 505. The same, in case of plaintiff
annexed, as attorney in fact imprisoned for crime.
of a foreign executor. 506. The same, where plaintiff sues 511. The same, where defendant is an assignee for benefit of
executor harassed by vexa. creditors.
67 Nugent v. Keenan, 53 N. Y. Super Ct. 530.
69 Dunk v. Dunk, 177 N. Y. 264. The case of Repub. of Honduras v. Soto, 112 N. Y. 310, holding that no additional security can be required where plaintiff deposits money in court, has been superseded by an amendment of 1901 to section 3276.
70 Tracy v. Dolan, 31 App. Div. 24, 52 N. Y. Supp. 351; Reck v. Phænix Ins. Co., 18 Wkly. Dig. 505.
?1 Kronfeld v. Liebman, 78 App. Div. 437, 79 N. Y. Supp. 1083. Compare Kelley o. Kremer, 74 App. Div. 456, 77 N. Y. Supp. 516, 11 Anno. Cas. 305.
512. Notice of motion to obtain se 517. Undertaking for costs. curity.
518. Notice of filing of undertaking. 513. Order to show cause why secur 519. Receiver's bond for costs.
ity for costs should not be 520. Affidavit to obtain order dismissgiven.
ing action for failure to file 514. Order that plaintiff file security
security for costs. for costs.
521. Order dismissing action for fail515. Affidavit to obtain additional
ure to tile security or to pay security for costs.
costs. 516. Notice of payment into court in lieu of undertaking.
FORM No. 502. Affidavit to obtain security for costs from non-resident plaintiff or relator.79 [Title of cause.] [Venue.]
Y. Z., being duly sworn, says:
I. That he is the defendant herein; that this action [or, if a special proceeding,13 say, this proceeding which is, here briefly indicate it, for example, an application for a writ of prohibition against, etc.), was commenced against deponent on the dav of
19 , and deponent has duly appeared herein, by M. N., his attorney, and his time to answer will expire on the day of
19. [Or, here state other condition of the cause, and if at issue show excuse for delay in applying, as in paragraph III, below.]
II. That when this action [or, proceeding] was commenced, plaintiff74 [or, relator] above-named was [and ever since has been"5] a non-resident of the State of New York, and then was [and still is] a resident of [France].78
72 All plaintiffs must be non-residents. Code (iv. Pro., $ 3270.
73 The inherent power of a court of record to require security for costs, in its discretion extends to special proceedings.
The N. Y. ('ode Civ. Pro., $ 3279, gives the defendant in a special proceeding the same right to require security as in an action.
74 Ä foreign State is a "person within the Code requirement. Re. public of Honduras v. Soto, 112 N. Y. 310.
75 Continued non-residence is, how. ever, held not essential. A plaintiff who resides without the State when the action is commenced, is not excused from filing security by the fact that he afterwards becomes a resi
dent. Ambler v. Ambler, 8 Abb. Pr. 340.
76 Mere temporary absence from the State does not necessarily constitute non-residence within the statute. Taylor r. Norris, 104 App. Div. 21, 93 N. Y. Supp. 356.
The matter of proof of non-resi. dence, and to what extent it may rest upon information, is discussed under “ SERVICE OF SUMMONS BY PUBLICATION," p. 666, etc. It is necessary to show that inquiry has been made in proper channels.
See Davidson . Bose, 57 App. Div. 212, 68 N. Y. Supp. 316.
A positive statement of nonresi. dence, made by defendant's attorney, was held sufficient although no iacts were disclosed from which it would
[Or, if the action is brought in a county court, the city court of Yonkers, or the justice's court for the city of Albany:]
II. That when this action [or, proceeding] was commenced said plaintiff [or, relator] was (and ever since has been] a nonresident of the city [or, county] of
and then was (and still is] a resident of in the [county] of
[Or, if a domestic corporation]” that plaintiff has its principal office and place of business in the city of in the county of
and such place of business was so designated in its certificate of incorporation.
[Or, if the cause is pending in the City Court of New York :)
II. That when this action was commenced, said plaintiff was (and ever since has been] a non-resident of the city of New York, and then had [and still has) no office for the regular transaction of business in person within the limits of the Borough of Manhattan or the Borough of the Bronx,78 and was then (and still is a resident of the city of [Buffalo), in the State of [New York).
[Where there has been delay in moving, state excuse, for int stance thus] III. That defendant is not personally acquainted with the plaintiff [or, relator], and was not aware of the fact of his being such non-resident until the
day of 19, when such fact and the fact that plaintiff [or, relator] was a non-resident at the commencement of this action was for the
appear that he had personal knowledge. Wickser v. Village of Elmira Heights, 42 App. Div. 426, 59 N. Y. Supp. 130.
See an examination of conflicting statements in affidavits out of which the court determined that a case of change of plaintiff's residence had been established against his claim of continued residence in New York. Flaherty 1. Cary, 25 App. Div. 195, 49 N. Y. Supp. 303.
An affidavit alleging that defendant's attorney was informed by one H., a personal friend of plaintiff, that the latter was a non-resident, and that H. declined to make an assidavit, establishes plaintiff's non-resi. dence prima facie. Mitchell v. Dick, 28 N. Y. Supp. 1003, 60 St. Rep. 161.
77A domestic corporation 'is. “person” within the code provision, and its residence in its principal place of business as designated in its certificate of incorporation. Sperin Spec. Agency r. Seaman, 49 App. Div. 33, 63 N. Y. Supp. 407.
78 N. Y. Code Civ. Pro., § 3160. In an action in the City Court of New York, a non-resident will not be required to give security for costs unless it affirmatively appears that he has no office or place for the regular transaction of business in the city. Stephenson v. Hanson, 4 Civ. Pro. Rep. (Browne) 104; Wyckoff v. Devlin, 8 id. 138; Gage r. Peetsch, 12 Misc. 548, 34 N. Y. Supp. 20. But see note 83, post, as to a foreign corporation.
Whether this reference to the “city” in the statute will cover the greater city as now constituted, or as existing prior to consolidation, is not yet decided. But it is necessary for defendant to negative plaintiff's have ing an office in the Borough of the Bronx. Pelz 1. Roth, 46 Misc. 419, 92 N. Y. Supp. 263.
A non-resident plaintiff who merely in the city in the employ of others, is not held to have an office or place of business therein, and gecurity may be required. Morehead v.