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behalf of said B. L., executrix, as aforesaid, and that said B. L. is the real party interested therein, and that this action was not brought by her as plaintiff, merely because she, being a non-resident of the State, might be required to give security for costs to the defendants, as a matter of right.
[Here followed such allegations, as to the claim and the estate, as would have supported the application had the executrix been the plaintiff on the record.]
FORM No. 511. The same, where defendant is an executor harassed by vexatious litigation.84
[As in other cases, and alleging character of plaintiff's proceedings thus:]
II. That the plaintiff's complaint sets forth three alleged causes of action to recover the aggregate sum of dollars, a portion of which sum is alleged to be due, as the first cause of action, on a promissory note which was, at the time this action was commenced, sixteen years overdue, and was barred by the statute of limitations in 19 ; that the second cause of action alleged is for the sum of dollars, alleged to be due for the sale of law books made in the year 19 ; and the examination of the plaintiff before trial shows that this claim was also barred by the statute of limitations when this action was commenced; that on the 14th day of February, 19 the plaintiff commenced ancther action in this court against the defendant to recover the aggregate sum of
dollars on two promissory notes, one being for dollars, dated twenty-three years ago, and payable on demand, and the second note being for
dollars, dated twenty-four years ago, also payable on demand, and on which note, the complaint alleged, nothing has been paid.
III. That these two suits are not commenced in good faith, but simply for the purpose of annoying the said executor, and for the purpose of extorting money and compelling the deferdant executor to pay the plaintiff money to discontinue these suits, and to allow him to file his final account as such executor; that these two causes of action alone prevent the settlement of said estate and the filing of the final account of defendant, and his discharge as such executor; that there is not the least doubt in the mind of
94 Adapted from Lewis v. Lewis, 13 Abb. N. C. 182, note, where the court granted the motion for security. See,
also, Murphy v. Travers, 60 How. Pr. 301.
deponent but that the defendant will be successful in these 150 causes; and that the usual affidavit of merits has been served and tiled herein.
IV. That on February 15, 19 , deponent searched the records in the office of the clerk of the city and county of New York for judgments against said plaintiff, and found a judgment against said plaintiff for the sum of dollars for costs, which was obtained in the
Court, on the second day of March, 19 in an action in which said plaintiff herein was plaintiff, and one X. Y., as adıninistrator, was defendant, and that an execution issued upon said judgment was returned unsatisfied, and the said judgment is still wholly unpaid and unsatisfied of record; and upon inquiry of J. C., the attorney for defendant in said action, deponent was informed that said J. C. had examined the said plaintiff herein in proceedings supplementary to execution, and was unable to find any property, and that said plaintiff was insolvent and pecuniarily irresponsible.
V. That this application is made in good faith, and that the same was made by deponent as soon as deponent learned of the insolvency and pecuniary irresponsibility of the said plaintiff herein.
FORM No. 512. Notice of motion to obtain security for costs.95 [Title of court and cause.]
Please take notice, that upon the annexed affidavit of Y. Z., verified the day of
19 , and upon the complaint, and the defendant's notice of appearance herewith serred upon you,96 the undersigned will apply to this court at a special term [Part I thereof] to be held at the county court house in the city of New York), on the day of
19, at o'clock in the forenoon, or as soon thereafter as counsel
, ' can be heard, for an order that the plaintiff pay into this court the sum of two hundred and fifty dollars, to be applied to the pare ment of the costs, if any, awarded against him, or at his election file with the clerk of this court an undertaking with sufficient sureties as prescribed in section 3273 of the Code of Civil Pro
95 Vecessary only when the motion is made under $ 3271.
See paragraph 5, p. 858.
36 The defendant must appear before moving for security. Thomas r. Wilson, 6 Hill, 257. And under N. I.
Code Civ. Pro., § 421. an informal
cedure, and that all other proceedings on the part of the plaintiff be stayed, until such payment or filing and notice thereof, and if an undertaking is given, until the allowance of the same, and that defendant have twenty days to answer or demur to the complaint herein after such payment or allowance, and for such other or further relief as may be just [with costs of this motion]. [Date.]
[Signature and office address of],
Defendant's attorney. [Address] To
FORM No. 513.
papers on which
Order to show cause why security for costs should not be given. [Name of] Court [or, if a court order] At a Special Term [etc.
See p. 255.] On the affidavit of Y. Z. (mentioning any other motion is made. See last Form].
ORDERED, that plaintiff show cause before a Special Term of this court, to be held at the county court house in the city of
o'clock in the forenoon, or as soon thereafter as counsel can be heard, why he should not be required to give security for costs according to the statute, and his proceedings be stayed until such security shall be given, and why defendant's time to answer shall not be extended until twenty days after the giving of such security, and for such other or further relief as may be just, with the costs of this motion.
[Date, and signature of judge with initials of title.] [Or, if a court order] Enter: [signature of judge by initials and
FORM No. 514.
Order that plaintiff file security for costs. [Name of] Court [or, if a court order]”? At a Special Term [etc. [Title of cause.]
See p. 255.] On reading and filing the affidavit of Y. Z., verified the
and [specifying any other papers on which the order was made], [and in those cases where notice is neces
97 It may be a judge's order if the application is under section 3268. A county judge cannot grant the order
in a Supreme Court action. Longstreet v. Sawyer, 39 St. Rep. 693, 21 Civ. Pro. 16.
sary, and on reading and filing proof of due service of notice of this motion upon plaintiff's attorney, and after hearing W. X., of counsel for the defendant, for the motion, and C. D., of counsel for the defendant opposed, it is] on motion of Y. Z., attorney for the defendant,
ORDERED, I. That the plaintiff, within days after service upon his attorney of a copy of this order, either pay into this court the sum of two hundred and fifty dollars, to be applied to the payment of the costs, if any, awarded against him, or at his election98 file with the clerk of this court an undertaking to be executed to the defendant by one surety [or, two — or more sureties],99 to the effect that he [or, they] will pay, upon demand, to the defendant, all costs which may be awarded to him in the action, not exceeding (at least two hundred and fiftył dollars; and shall also, within the time aforesaid, serve a written notice of such payment or filing upon the defendant's attorney.
II. That all the proceedings of the plaintiff herein be and they are hereby stayed, except to review or vacate this order, until the payment of said money, or filing of such undertaking, and notice thereof, and also, if an undertaking shall be given, until the allowance of the same.
III. That the time of the defendants to answer or demur to the complaint is extended for twenty days after this order shall be complied with.”
[IV. And that plaintiff pay defendant dollars costs of this motion.]
[Authentication as in last Form.]
98 The order requiring a plaintiff to give security for costs, under N. Y. Code Civ. Pro., $ 3268, should comply with section 3272, in giving plaintiff the alternative of payment into court of $250, or of giving an undertaking. Schultz t. Third Ave. R. R. Co., 49 N. Y. Super Ct. 95; Robertson v. Barnum, 29 Hun, 657.
99 The statute does not require plaintiff to join in the undertaking, and a provision in the order requiring him to join is a nullity and properly disregarded. Ellensohn v. Haselbach, 17 Misc. 92, 39 N. Y. Supp. 332.
1 This sum is the limit which the court may exact upon the original application. Any additional sum requires a further application therefor. See paragraphs 1 and 6, supra, pp. 855, 858.
2 A stay of proceedings (until plaintiff files security for costs) does not operate as an extension of the time to answer. White r. Smith, 16 Abb. Pr. 109 n. A defendant is entitled to such an extension without an affidavit of merits. Worthington F. Warner, 19 Abb. N. C. 266; Corn Exch. Bank v. Kimball, 20 id. 290. Contra, Kinley 1. Hardware Mig. Co., 49 Misc. 334.
FORM No. 515.
Z. T., being duly sworn, says:
who are the attorneys for the defendant herein. II. That this action was commenced on
19 and has been thrice tried, the complaint on each occasion having been dismissed [here followed brief statement of the successive stages, and the amount of costs taxed on each), and that said costs, together with the said allowance and the costs of the last trial, will exceed the sum of $1,250.
III. That the plaintiff is and always has been a non-resident of the State of New York, residing, as deponent is informed and believes, in Bremen, Germany. IV. That on the
19, in compliance with an order duly granted and entered in this action on the
19 requiring the giving of security for posts," the plaintiff's attorneys paid into court (or duly filed an undertaking as provided by statute as security for plaintiff's costs forj the sum of $250. That at different times deponent has requested the said attorneys to furnish additional security for costs in this action, to which they have responded that the plaintiff was abundantly solvent, and have neglected to comply with said request.
V. [Here followed concise statement of the condition of the cause." [Jurat.]
[Signature.] [Notice of motion, or order to show cause, may be adapłed from Forms Nos. 512 and 513, inserting “ additional security for costs in the sum of,” specifying what is desired.]
3 From a precedent in a litigated case where it was held error to deny the motion on this affidavit.
The application may be founded on proof of death or insolvency of any surety, as well as insufficiency of the security given. Code Civ. Pro., $ 3276.
The decision that additional security cannot be required after deposit of money in court (Repub. of
Honduras v. Soto, 112 N. Y. 310) has been obviated by the 1901 amendment to section 3276. Dunk v. Dunk, 177 N. Y. 264, 270.
4 An order for the giving of the original security is necessary. Dunk 1. Dunk, supra.
5 Additional security may be required pending plaintiff's appeal. Bender v. Paulus, 109 App. Div. 148, 05 N. Y. Supp. 671.