Glover v. Cuming

12 Wend. 295

Opinion

By the Court,

Sutherland, J.

I consider the practice of the defendant in this case entirely regular, and am satisfied that judgments of non-pros have frequently been granted on similar applications, although no cases are found reported. Cases, however, are reported where such judgments have been granted for the omission of a plaintiff to deliver a bill of particulars, and the proceedings in these cases are deemed strictly analogous ; in neither case can the plaintiff proceed in his suit until he has complied with the order of the court. Besides, no reason is perceived why a defendant, after tying up his adversary, should be compelled to incur the expense of any proceedings,besides those absolutely necessary to put the plaintiff out of court by a direct motion for that purpose. On receiving notice of the motion for judgment of non-pros, the plaintiff may still comply with the order to file security for costs, on paying the costs of the motion; or if cause can be shown for enlarging the time to file security, no doubt time will be extended for that purpose. The defendant, therefore, is entitled to his motion; but as the practice does not appear to have been settled, it is granted conditionally, unless the plaintiff within 20 days file security for costs ; and no costs of this motion are allowed. Whatever doubt may have been entertained heretofore, none will exist hereafter, as to the practice in a case like this, as the practice of the defendant in this case is approved by the court.