Gelch v. Barnaby

7 Abb. Pr. 19, 1 Bosw. 657

• Court: The Superior Court of New York City
• Decided: July 15, 1858
• Status: Published

Opinion

Boswobth, J.

—The defendants move for an order that plaintiff'file security for costs, on the ground that she has become a resident of Hew Jersey since the action was commenced. The motion is opposed on the ground that this action is brought to recover possession of personal property, and that plaintiff gave an undertaking with sureties, such as is prescribed by section 209 of the Code. To this it is answered, that the defendants required and obtained a return of the property by executing with sureties such an undertaking as is provided for by section 211 of the Code.

The Supreme Court held in Rogers a. Hitchcock, that a plaintiff in replevin who had executed the proper bond, would not be compelled to give a further bond as security for costs, although not a resident of this State (9 Wend., 462). This was probably so decided on the ground that a bond under 2 Bevised Statutes, 523, § J, was as broad, as a bond under 2 Revised Statutes, 620, § 4, and that by the bond first given the defendants had been furnished with all the security to which 2 Revised Statutes, 620, entitled him.

The Bevised Statutes did not enable a defendánt in a replevin suit to procure a return of the property to himself by merely demanding it, and giving prescribed security.

There is much in the provisions of the Code in supjjort of the proposition, that when a defendant in an action to recover the possession of personal property requires a return of it to himself, and complies with section 211 of the Code, he thereby loses and is deprived of all right to bring an action for any purpose, on the undertaking given by the plaintiff to obtain the possession pendente lite.

If the defendants succeed, the only judgment they can recover is one for costs. It may, at least, be said that the Code does not in terms allow them to assess damages for the temporary interruption of their possession (Code, 277).

It is quite clear that the rights of the defendants to sue upon the plaintiff’s undertaking may be very different from those of a defendant in an action of replevin under the Revised Statutes.

I think, therefore, she is not exempted from liability to file security for costs because she gave an undertaking under section 209 of the Code, nor because she does not intend to reside permanently in Mew Jersey. Security for costs must be filed in twenty days.