Nimcke v. New York Evening Journal Publishing Co.

133 N.Y.S. 1075

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1912
• Status: Published

Opinion

SEABURY, J.

[1] The plaintiff made the motion to vacate the order requiring him to furnish security for costs on the ground that the defendant secured the last-mentioned order after it had served its answer. The affidavit submitted on behalf of the defendant disclosed no excuse for not making the application for security for costs before the answer was served. The defendant, in order to be entitled to security for costs as a matter of right, must make the motion therefor before answer.

[2] If the defendant answers without making the motion, his right to require security rests in the discretion of the court and “will not, as a rule, be granted, unless the defendant offers some reasonable excuse for not applying earlier for the order, or shows some reason, other than the mere fact of nonresidence, why the order should be granted.” Fabrik Schillerscher Verschluesse Actien Gesellschaft v. Nease, 117 App. Div. 379, 102 N. Y. Supp. 672. In the present case no fact, other than the fact of'nonresidence, was shown.

It follows that the order should be reversed, with $10 costs and disbursements, and the motion to vacate the order requiring security for costs is granted, with $10 costs. All concur.