Hinds v. Douglass

19 Abb. Pr. 11, 29 How. Pr. 379

• Court: New York Supreme Court
• Decided: February 15, 1865
• Status: Published

Opinion

By the Court.

*—Sutherland, J.

The practice before and since the Code in obtaining security for costs is correctly stated by Justice Barnard, in Caldwell a. Manning, 15 Abbott, 271. He also states correctly the practice before the Code, in case the security was not filed within- a reasonable time after a peremptory order to" file security.

There can be no doubt, I think, as to the power of the court to order judgment of nonpros., in case the security is not filed within a reasonable time after a peremptory order. For the court to do so, is perfectly consistent with the statutory stay of the plaintiff’s proceedings.

That the court exercised this power before the Code, see Champlin a. Petrie, 4 Wend., 209; Glover a. Cumming, 12 Wend., 295.

There is nothing in the Code taking away or affecting this power of the court.

There could be but one bond, and this must be for the benefit of all the defendants. I think the motion was properly made for, and granted as to all of the defendants.

The order should be affirmed with $10 costs.

Present—Ingraham, P. J., Sutherland and Clerke, JJ.