Rothchild v. Wilson

10 N.Y.S. 61, 24 Abb. N. Cas. 123

Opinion

Lawrence; J.

Where the plaintiffs are non-residents, and there are two or more defendants, they cannot appear separately, and each require a bond to him as security for his costs. The statute¹ requires only one bond, which should run to the defendants, and is for the benefit of them all. Leftwick v. Clinton, 26 How. Pr. 26. That case was decided under the old Code, and counsel have not referred me to any ease which modifies or qualifies that decision.

In these cases, it appears that an order was granted ex parte, on the motion of the defendant Wilson, requiring the plaintiff to give an undertaking in the sum of $250, to be applied to the payment of the costs awarded against the plaintiff to the said defendant Peter K. Wilson. That order has not been complied with. The undertaking given on the 12th of October, 1889, being given to all defendants, and, having been excepted to by them as to form and sufficiency, was not in compliance with that order. The undertakings now under consideration were filed voluntarily, without leave of the court, on the 2d of December instant, and are in the sum of $1,000 each, to secure the costs of all the defendants. This undertaking is correct in form, but, having been filed without leave of the court, and without giving the other party an opportunity to be heard as to the amount of the undertaking, I cannot approve o£ the same; but leave will be given to the plaintiff to apply for an order t® show cause why they should not have leave to file an undertaking in the sum of $1,000 to secure the defendants for all costs which may be awarded to them, in the action.

1 Code Civil Proc. N. Y. § 3273, provides that “the undertaking * * * must be executed to the defendant ” etc.