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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. See pp. 116, 171].

[Add affidavit of merits if extension of time to answer is de

sired.] 79

[Jurat.]

FORM No. 503.

[Signature.]

The same, in case of plaintiff or relator having removed pending suit.80 [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 States 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 applica tion, since plaintiff's removal, state facts excusing delay, such as, lack of knowledge.]

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 v. 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, e. g.. where plaintiff has engaged passage for Europe, is not enough; there must be an actual removal. Morten v. Domestic Teleg. Co., 1 Abb. N. C 290.

But voluntary removal is not neces sary. A resident taken to another State as a fugitive, may be required to give security. Long v. 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 corporation82 created by and under the laws of the State

of

83

[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 abovenamed was imprisoned in the county jail of

ecution for the crime of

85

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under ex

[Or] II. That since the commencement of this action, and in

or about the month of

upon conviction of the crime of

last, plaintiff above-named was,

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sentenced by the court to the State prison of New York for the term of years.86

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 re

82 A national bank, or any corpora tion created by or under the laws of the United States, if located in the State of New York, is a domestic corporation. N. Y. Code Civ. Pro., § 3343, subd. 18. But when located in another State, it is a foreign corporation, and a receiver, who is appointed by the Comptroller of the Currency and is neither an official assignee nor trustee of an express trust, nor expressly authorized by statute to sue, must give security for costs, if himself a non-resident. Beckham v. Hague, 44 App. Div. 146, 60 N. Y. Supp. 767.

A foreign country may be required to give security for costs. Republic of Mexico v. Arrangois, 3 Abb.

Pr. 470. See, also, STAY OF PROCEED-
INGS.

83 It is unnecessary to add, if the action is in the New York City Court, that the corporation has no office for the transaction of business within the city or borough. Section 3160 does not apply to a foreign corporation. Henry Huber Co. v. Warren, 29 Misc. 588, 61 N. Y. Supp. 247.

84 In the case of a relator in habeas corpus, N. Y. Code Civ. Pro., § 2000, which requires tender of fees, is security enough.

85 Provided for by N. Y. Code Civ. Pro., § 3268, subd. 3.

86 Provided for by N. Y. Code Civ. Pro., § 3269, subd. 3.

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cover in his representative capacity as such upon a cause of action claimed by him to have arisen prior to said assignments as ap pears 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,88 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 fol lowing:]

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.]90

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:]

day of

II. That since the commencement of this action, and on or about the , 19, 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, when he sues upon a cause of action arising before the assignment, may be compelled by the defendant to give security for costs. N. Y. Code Civ. Pro., § 3268. But where the cause of action arose after the assignment, the

matter is in the discretion of the

court. Id., § 3271; Welch v. Gaffney,

1 How. Pr. (N. S.) 146.

88 In such case a motion on notice is necessary.

89 This application presents two phases; where the cause of action arose before the adjudication in bankruptcy or appointment of the trustee, the defendant has a right to the security; otherwise, the application is on notice and to the discretion of the court. Joseph r. Raff, 75 App. Div. 447, 78 N. Y. Supp. 310; Kronfeld v. Liebman, 78 App. Div. 437, 79 N. 1.

Supp. 1083; Welch t. Gaffney, 1 How.
Pr. (N. S.) 146.

See, as to whether a cause of action has arisen prior or subsequent to the adjudication in bankruptcy, or ap pointment of trustee. Rielly r. Rosen berg, 57 App. Div. 408, 68 N. Y. Supp. 265, 9 Anno. Cas. 377; Schreier t. Hogan, 70 App. Div. 2, 74 N. Y. Supp. 1051.

90 In the latter case, a motion on notice is necessary.

91 Laches in discovering will not defeat application. Donnelly v. Third Ave. R. Co., 112 App. Div. 648, 98 N. Y. Supp. 387.

Where security is claimed on the ground that plaintiff has been exoner ated from imprisonment, his present inability must be shown. So held where the discharge was ten years previous. Recent discharge would

York, briefly describing it; and if the particulars are known, add, by a discharge then duly granted by

at

responsible.

in the court of

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or otherwise], and he is now wholly insolvent and ir

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

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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

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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 in-
solvency. Gomez r. Garr, 18 Wend.
577. The statute then in force was
that "when any suit shall be brought
in the name of any person, being in-
solvent.
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.]

FORM No. 510.

[Signature.]

The same, where plaintiff is the administrator with the will annexed, as attorney in fact of a foreign executor.93

[As in other cases, but alleging plaintiff's relation to the cause, as follows:]

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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.

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day of

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 19, 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; and 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.

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