Donnelly v. Third Avenue Railroad

Appellate Division of the Supreme Court of New York

Donnelly v. Third Avenue Railroad

112 A.D. 648, 98 N.Y.S. 387, 1906 N.Y. App. Div. LEXIS 738

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 20, 1906

StatusPublished

This text of 112 A.D. 648 (Donnelly v. Third Avenue Railroad) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Donnelly v. Third Avenue Railroad, 112 A.D. 648, 98 N.Y.S. 387, 1906 N.Y. App. Div. LEXIS 738 (N.Y. Ct. App. 1906).

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Opinion

Laughlin, J.:

The order requiring security for costs was granted upon the ground that since the commencement of the action and after issues joined therein, and after the cause was placed upon the calendar, the plaintiff was duly adjudged a bankrupt. The order vacating. the order requiring security for costs appears to have been granted upon the ground of laches. We fad to find in the record any evidence of laches. It does not appear when the plaintiff became a bankrupt or when the' defendant became aware of such bankruptcy. Surely, where the bankruptcy occurs' after issue joined, there can be no duty of active vigilance on the part of the defendant to discover it, and the defendant is not obliged to show. affirmatively on a motion of this kind diligence in discovering the bankruptcy occurring after joinder of issue, which is the basis of the motion.

It follows, therefore, that the order should be reversed, with ten [649]*649dollars costs and disbursements, and the motion denied, with tea dollars costs.

O’Brien, P. J., Patterson, Ingraham and Clarke, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order filed.

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Laughlin, J.:

The order requiring security for costs was granted upon the ground that since the commencement of the action and after issues joined therein, and after the cause was placed upon the calendar, the plaintiff was duly adjudged a bankrupt. The order vacating. the order requiring security for costs appears to have been granted upon the ground of laches. We fad to find in the record any evidence of laches. It does not appear when the plaintiff became a bankrupt or when the' defendant became aware of such bankruptcy. Surely, where the bankruptcy occurs' after issue joined, there can be no duty of active vigilance on the part of the defendant to discover it, and the defendant is not obliged to show. affirmatively on a motion of this kind diligence in discovering the bankruptcy occurring after joinder of issue, which is the basis of the motion.

It follows, therefore, that the order should be reversed, with ten [649]*649dollars costs and disbursements, and the motion denied, with tea dollars costs.

O’Brien, P. J., Patterson, Ingraham and Clarke, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order filed.

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Bluebook (online)

112 A.D. 648, 98 N.Y.S. 387, 1906 N.Y. App. Div. LEXIS 738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donnelly-v-third-avenue-railroad-nyappdiv-1906.