Galanek v. Guntzer

184 Misc. 485, 54 N.Y.S.2d 118, 1945 N.Y. Misc. LEXIS 1658

• Court: City of New York Municipal Court
• Decided: March 6, 1945
• Status: Published

Opinion

Boneparth, J.

Motion to require Jean Galanek, one of the plaintiffs, to give security for costs, denied. She was a resident of Bronx. County when the action ivas started. Subdivision C of section 1522 of the Civil Practice Act provides that “ * * * if there are two or more plaintiffs, the defendant cannot require security for costs to be given unless he is entitled to require it of all the plaintiffs." (Blaise v. Bovin, 173 Misc. 963.)

The other plaintiff, Stanley Galanek, has been inducted and is now in the military service. There is no proof submitted as to the residence of the plaintiff, Stanley Galanek. We may assume that he is stationed outside of New York State. Apparently, both plaintiffs were residents of this city before his induction. Irrespective of the question of what effect induction had on Stanley Galanek’s residence, it certainly would violate the whole spirit, if not the letter, of the Soldiers’ and Sailors’ Civil Belief Acts, both Federal (U. S. Code, tit. 50, Appendix, § 501 et seq.) and State (Military Law, § 300 et seq.), to hold that a resident plaintiff, inducted into the service, be required to give security for costs as a nonresident; “ * * * the statutes above referred to were enacted solely for the benefit of those engaged in military service, and must be construed so as to accomplish the purpose of their enactment, namely, relief from the consequences of handicaps and other obligations incurred prior to the call to duty, to the end that entire energies may be devoted to military duties, unhampered by mental distress, * * * (Jaworski v. McCloskey, 47 N. Y. S. 2d 26, 27.)

Accordingly, since no security for costs could be required of Stanley Gralanek, the present motion must be denied.

Order signed.