Johnson v. Metropolitan Street Railway Co.

Appellate Division of the Supreme Court of New York

Johnson v. Metropolitan Street Railway Co.

56 A.D. 286

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 1, 1900

StatusPublished

This text of 56 A.D. 286 (Johnson v. Metropolitan Street Railway Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Johnson v. Metropolitan Street Railway Co., 56 A.D. 286 (N.Y. Ct. App. 1900).

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Rumsey, J.:

This action was begun on the Ith of August, 1900. The complaint was served on the 29th of September, 1900. The defend-, ant’s time to answer was extended on the seventeenth of October for fifteen days. The order requiring the plaintiff to give - security for costs was procured on the twenty-sixth of October, before the [287]*287answer was served, and the answer was served on the thirtieth day of October. The court vacated the order requiring the plaintiff to give security, upon the ground of laches.

We think the decision was erroneous. The rule is settled in this department that the absolute right of the defendant to require a non-resident plaintiff to give security for costs is waived, unless the order is applied.for before answer. (Henderson, Hull & Co. v. McNally, 33 App. Div. 132.) The defendant complied with this rule and obtained the order within the time required by it. The affidavits upon which the order was obtained were sufficient to waiv rant it, and in the absence of any proof on the part of the plaintiff to overthrow the facts'stated in those affidavits, there was nothing to deprive the defendant of the right to have security.

The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion to vacate the order requiring security for costs denied, with ten dollars costs.

Yah Brunt, P. J., Patterson and Ingraham, JJ., concurred; Hatch, J., dissented.

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Rumsey, J.:

This action was begun on the Ith of August, 1900. The complaint was served on the 29th of September, 1900. The defend-, ant’s time to answer was extended on the seventeenth of October for fifteen days. The order requiring the plaintiff to give - security for costs was procured on the twenty-sixth of October, before the [287]*287answer was served, and the answer was served on the thirtieth day of October. The court vacated the order requiring the plaintiff to give security, upon the ground of laches.

We think the decision was erroneous. The rule is settled in this department that the absolute right of the defendant to require a non-resident plaintiff to give security for costs is waived, unless the order is applied.for before answer. (Henderson, Hull & Co. v. McNally, 33 App. Div. 132.) The defendant complied with this rule and obtained the order within the time required by it. The affidavits upon which the order was obtained were sufficient to waiv rant it, and in the absence of any proof on the part of the plaintiff to overthrow the facts'stated in those affidavits, there was nothing to deprive the defendant of the right to have security.

The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion to vacate the order requiring security for costs denied, with ten dollars costs.

Yah Brunt, P. J., Patterson and Ingraham, JJ., concurred; Hatch, J., dissented.

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56 A.D. 286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-metropolitan-street-railway-co-nyappdiv-1900.

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