Fabrik Schiller'scher Verschluesse Actien Gesellschaft v. Nease

117 A.D. 379, 102 N.Y.S. 672, 1907 N.Y. App. Div. LEXIS 262

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 8, 1907
• Status: Published

Opinion

Per Curiam :

The action was begun by the service of a complaint on August 30, 1906.

An. answer was served on October 8, 1906. The complaint alleged that plaintiff was a foreign corporation, as indeed its name indicated. 0,n December .22, 1906, the defendant obtained an ex 'parte order requiring the plaintiff to give security for costs and staying its proceedings until such security was given. It is settled by abundant authority in this department.that a defendant waives his absolute right to require a non-resident plaintiff to give security for costs unless the order therefor is applied for' before answer. Thereafter such 'an order becomes a matter„of discretion, and will not, as a-rule, be granted unless the defendant offers some reasonable excuse for not applying earlier for the order, or shows some reason other than the mere fact of non-residence why the order should be granted. In the present case nothing is shown to justify the exercise of the court’s discretionary power in defendant’s behalf.

The only excuse given for the delay in applying for the order is the very vague and general one of pressing and important business which crowded the matter out of the mind of the defendant’s attorney. This is obviously insufficient.

The order denying plaintiff’s-motion to vacate the order requiring the plaintiff to give security for costs will be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Present — Patterson, P. J., Ingraham, Laughlin, Clarke and Soott, JJ,

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