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first time discovered; that at the time of the commencement of the action, defendant made inquiries [state what and where, and show misleading information, or no information, etc.]
[apply ex parte for the order; or, if the proof of non-residence seems weak, and depending on hearsay, may notice motion; or, if an order to show cause is sought instead of giving notice of motion] IV. That an order to show cause is asked for because (stating reasons; see Form No. 52, at page 171]; and that no previous application has been made for such order [except, etc.
CAPE 116, 1711." has been made at page 1911.d for because
[Add affidavit of merits if extension of time to answer is desired.]" [Jurat.]
[Signature.] FORM No. 503. The same, in case of plaintiff or relator having removed pending suit.se
[As in preceding Form, substituting, however, for paragraph II, the following:]
II. That since the commencement of this action [or, proceeding), and in or about the month of
last, the plaintif [or, relator] above-named removed from this Statesl to the State of , and has ceased to be a resident of this State, and is not within the jurisdiction of this court [but now resides at ].
[If there has been a considerable delay in making the application, since plaintiff's removal, state facts excusing delay, such as, lack of knouledge.]
Kimball, N. Y. Daily Reg. Jan. 17, 1882.
A plaintiff in the New York City Court, who has given an undertaking upon the issue of short summons, is not required to give security for costs besides. N. Y. Code Civ. Pro., & 3165.
79 Kinley . Hardw. Mfg. Co., 49 Misc. 334.
80 See N. Y. Code Civ. Pro., $ 3269, subd. 2. See Levy v. Meirowitz, 16 Misc. 284, 28 N. Y. Supp. 123, wherein the court examined the suffi
ciency of the proof establishing a change of residence.
81 Contemplated removal, ., where plaintiff has engaged passage for Europe, is not enough; there must be an actual removal. Morten v. Domestic Teleg. Co., I Abb. N. ( 290.
But voluntary removal is not neces. sary. A resident taken to another State as a fugitive, may be required to give security. Long e. Hall, 3 Sandf. 729, 1 C. R. (N. S.) 114.
FORM No. 504.
The same, where plaintiff is a foreign corporation. [As in Form No. 502, substituting, however, for paragraph II, the following] II. That the plaintiff above-named is a foreign corporation 82 created by and under the laws of the State of
[Under N. Y. Code Civ. Pro., § 3268, subd. 2.]
FORM No. 505. The same, in case of plaintiffs4 imprisoned for crime. [As in Form No. 502, substituting, however, for paragraph 11, either of the following, as the case may require:]
II. That when this action was commenced, plaintiff above named was imprisoned in the county jail of
under execution for the crime of
[Or] II. That since the commencement of this action, and in or about the month of last, plaintiff above-named was, upon conviction of the crime of
sentenced by the court to the State prison of New York for the term of years.
FORM No. 506. The same, where plaintiff sues as assignee for benefit of creditors.
[As in Form No. 502, substituting, however, for paragraph II, the following:]
II. That this action is brought by the plaintiff above-named as assignee for the benefit of creditors of L. M., under an alleged assignment made in or about the month of
last, to re82 A national bank, or any corpora Pr. 470. See, also, STAY OF PROCEEDtion created by or under the laws of INGS. the United States, if located in the 83 It is unnecessary to add, if the State of New York, is a domestic cor action is in the New York City Court, poration. N. Y. Code Civ. Pro., that the corporation has no office for $ 3343, subd. 18. But when located the transaction of business within the in another State, it is a foreign cor. city or borough. Section 3160 does poration, and a receiver, who is ap not apply to a foreign corporation. pointed by the Comptroller of the Herry Huber Co. '. Warren, 29 Currency and is neither an official Misc. 588, 61 N. Y. Supp. 247. assignee nor trustee of an express 84 In the case of a relator in habeas trust, nor expressly authorized by corpus, N. Y. Code Civ. Pro., $ 2000, statute to sue, must give security for which requires tender of fees, is secosts, if himself a non-resident. Beck curity enough. ham v. Hague, 44 App. Div. 146, 60 85 Provided for by N. Y. Code Civ. N. Y. Supp. 767.
Pro., $ 3268, subd. 3. A foreign country may be
86 Provided for by N. Y. Code Civ. quired to give security for costs. Re. Pro., $ 3269, subd. 3. public of Mexico v. Arrangois, 3 Abb.
cover in his representative capacity as such upon a cause of action claimed by him to have arisen prior to said assignments as appears by the complaint herein. [Or, if the cause arose since, add facts appealing to the discretion of the court, as a case for requiring security,sø see Forms Nos. 511, 517].
FORM No. 507. The same; where plaintiff sues as trustee in bankruptcy.89 [As in Form 502, substituting for paragraph II, the following:]
II. That this action is brought to recover upon an alleged claim of said M. N. [bankrupt] for money loaned to deponent [or, otherwise show a cause of action accruing before plaintiff's appointment; or if action thereafter accrued, then present facts invoking the court's discretion.] ”0
FORM No. 508. The same, in case of insolvency of plaintiff pending suit.91 [As in Form No. 502, substituting for paragraph II the following:]
II. That since the commencement of this action, and on or about the day of
, the plaintiff above-named was duly adjudicated a bankrupt in the District Court of the United States for the District [or, was discharged from his debts — or, his person was exonerated from imprisonment on account of his debts pursuant to the statute of the State of New
87 The official assignee of a debtor, Supp. 1083; Welch r. Gaffney, 1 How. when he sues upon a cause of action Pr. (N. S.) 146. arising before the assignment, may See, as to whether a cause of action be compelled by the defendant to give has arisen prior or subsequent to the security for costs. N. Y. Code Civ. adjudication in bankruptcy, or ap. Pro., $ 3268. But where the cause of pointment of trustee. Rielly r. Rosen
action arose after the assignment, the berg, 57 App. Div. 408, 68 V. Y. • matter is in the discretion of the Supp. 265, Anno. Cas, 377;
court. Id., § 3271; Welch r. Gaffney, Schreier v. Hogan, 70 App. Div. 2, 1 How, Pr. (N. S.) 146.
74 N. Y. Supp. 1051. 88 In such case a motion on notice 90 In the latter case, a motion on is necessary.
notice is necessary. 89 This application presents two 91 Laches in discovering will not phases; where the cause of action defeat application. Donnelly 1. Third a rose before the adjudication in bank Ave. R. Co., 112 App. Div. 648, 98 ruptcy or appointment of the trustee, N. Y. Supp. 387. the defendant has a right to the se. Wiere security is claimed on the curity; otherwise, the application is ground that plaintiff has been exoner. on notice and to the discretion of the ated from imprisonment, his present court. Joseph r. Ratt, 75 App. Div. inability must be shown. So held 447, 78 N. Y. Supp. 310; Kronfeld v. where the discharge was ten years Liebman, 78 App. Div. 437, 79 N. Y. previous. Recent discharge would
York, briefly describing it; and if the particulars are known, add, by a discharge then duly granted by in the court of at
or otherwise), and he is now wholly insolvent and irresponsible
FORM No. 509. The same, where plaintiff is an executor or administrator.92 [Title of court and cause.) [Venue.]
Z. T., being duly sworn, says that he is attorney for defendant in the above entitled action.
I. [Here followed statement of cause of action, which was for negligence causing death; and of the course of the litigation, in which several appeals had been had; and costs accumulated.]
II. That thereafter, and on or about the
day of 19 , the deponent caused to be served on plaintiff's attorneys a notice of demand for security for costs of this action, and the plaintiff has not complied therewith, and no security has ever been given to the defendant in this case; that the defendant has incurred great expense in defending this action, and deponent feels confident under the decision of the Appellate Division in this case, and the decisions of the Court of Appeals in other cases applicable to the present, it will be impossible for the plaintiff, upon a re-trial of this case, to succeed.
III. That unless the plaintiff shall be required to give security for costs, the defendant will be unable to be reimbursed for any portion of the expense incurred by it in this action.
IV. That the plaintiff is the duly appointed administratrix of the goods, chattels, and credits of M. N., deceased, having been appointed by the surrogate of county, on the day of
V. That from information this deponent has received from reliable sources [indicate them, as, the application of the plaintiff for her letters), and verily believes, that the defendants, in
have been sufficient evidence of insolvency. Gomez 1. Garr, 18 Wend. 577. The statute then in force was that “when any suit shall be brought in the name of any person, being insolvent.
whose person shall
have been exonerated from imprisonment,” etc.
92 See paragraph 4, p. 857.
The precedent' is from Tolman v. Syracuse, etc., R. Co., 92 N. Y. 353.
case they are finally successful in this case, will be unable to collect from the plaintiff the costs herein, inasmuch as there are no assets of the estate she represents. [Jurat.]
[Signature.] FORM No. 510. The same, where plaintiff is the administrator with the will annexed, as at:
torney in fact of a foreign executor.93 [As in other cases, but alleging plaintiff's relation to the cause, as follow's:]
That this action is brought by the plaintiff above-named, as the administrator with the will annexed of one J. L., deceased, to recover from the defendants the sum of dollars, with interest thereon from
19 , upon a pretended cause or causes of action, alleged to have accrued to the said J. L. in the year 19, during the lifetime of the said L. ; that at the time alleged, and for a long time previous thereto, said L. was, and continued to be until his decease, a non-resident of the State of New York, residing at Savannah, in the State of Georgia, that, as deponent is informed and believes, at the decease of said J. L., on or about the
19 he left a will, by which B. L. was appointed executrix thereof, and that she duly qualified as such executrix at said city of Savannah, in the State of Georgia, and ever since has been and still is such executrix.
That at the time of the decease of said J. L., said B. L. was, and ever since has been and now is, a non-resident of the State of New York, residing at Savannah, in the State of Georgia ; that in
, said L., she being then within the State of New York, constituted and appointed the plaintiff in this action, her attorney in fact for the purpose of collecting and receiving the estate of said J. L., deceased, and that the letters of administration with the will annexed, mentioned in the complaint herein, were applied for by and were issued to the plaintiff merely as the attorney in fact of said B. L., executrix, as aforesaid; that deponent's information as to the facts hereinbefore stated on information and belief, is derived from the affidavit of J. A. M., which is hereunto annexed; ani that from the facts above stated, deponent verily believes that this action, although brought in the name of the plaintiff, is so brought in reality for the benefit and in
93 From the unreported case of Carney v. Bernheimer, in which it was well held that such application ought in justice to be treated in the
exercise of the discretion of the court, as if the foreign executor were the real plaintiff.