Ranney v. Stringer & Townsend

17 Bosw. 663

• Court: The Superior Court of New York City
• Decided: February 28, 1860
• Status: Published

Opinion

Robertson, J.

This is an application to compel the plaintiff to give security for costs on an appeal fróm a Special to a General Term, after verdict for the defendant, the plaintiff suing in a representative capacity.

It having been held that an appeal is not a new suit, as a writ of error formerly was, so as to compel security for costs where a party had become a non-resident after the commencement of the original suit, (Johnson v. Yeomans, 8 How., 140; 7 Wend. R., 434,) it must be equally held to be' a continuation of the original action, for the purpose of making a non-resident and his sureties liable for its costs. Under the 317th section of the Code, the Court may require security to be given by the plaintiff in the cases mentioned in that section; and as this might have been done at any stage of the proceedings in the action, it is not too late to do it now; the rule as to non-residents, where the .attorney may be preferred as security not applying. I think the uncontradicted affidavits on the part of the defendants show a case for exercising the discretion allowed in the section in question, and an order must be made directing the plaintiff to file security for costs, or his appeal be dismissed with $10 costs of this motion, to be costs in the cause.