Perrin v. Whipple

118 N.Y.S. 1048

Opinion

DAYTON, J.

Action (apparently) brought for specific performance of contract. Defendants appeared separately, and each obtained an ex parte order directing that security for costs be filed in $250. Plaintiff makes three motions to vacate "said orders.

In Rothchild v. Wilson (Sup.) 10 N. Y. Supp. 61, Mr. Justice Lawrence held as follows:

“Where the plaintiffs are nonresidents, and there are two or more defend- • ants, they cannot appear separately and each require a bond to him as security for his costs. The statute requires only one bond, which should run ‘to the defendants,’ and is for the benefit of them all”—citing Leftwick v. Clinton, 26 How. Prac. 26.

I have not been referred to any authority distinguishing or overruling that decision.

Plaintiff is therefore strictly within his rights in making these motions, which must be granted, with $10 costs of each motion, but without prejudice to an application by defendants for an order requiring the plaintiff to file an undertaking in the sum of $750 to secure the defendants for all costs which may be awarded to them in this action.