Leftwick v. Clinton

26 How. Pr. 26, 1863 N.Y. Misc. LEXIS 302

• Court: New York Supreme Court
• Decided: October 19, 1863
• Status: Published

Opinion

Campbell, J.

The language of the statute is, “ such security shall be given in the form of a bond in the penalty of at least two hundred and fifty dollars, with one or more sufficient sureties to the defendant, conditioned to pay on demand all costs that may be awarded to the defendant in such suit.” The statute provides for but a single bond; that bond should run to the defendants if there are more than one, and should be for the benefit of all. But while the statute limits the security to a single bond, it does not prevent the court or judge from requiring a bond in a larger penalty than two hundred and fifty dollars. It must be “at least” in that amount. It is not necessary to decide whether a defendant who had not moved could afterwards except to the security, nor whether if a bond were once given on the application of one defendant the statutory remedy would be exhausted; nor whether the other defendant on coming in could have a new bond in place of the old with an.enlarged penalty. The only question before me is whether a bond to each defendant can be required. I think not. There are no reported cases on this branch of the statute, and there- will be no costs of the motion.

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Note.—All difficulty as to different defendants moving for security at different times could probably be avoided by the court requiring the motion of the one first moving to stand over until he gave notice thereof to the other defendants, and allowing them to be heard with him. Perhaps where one defendant moves it would be safer for him in the first instance to serve his motion papers on his co-defendants in the same manner as on the plaintiff.—Rep.