Segal v. Cauldwell

Appellate Division of the Supreme Court of New York

Segal v. Cauldwell

22 A.D. 95

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 1, 1897

StatusPublished

Cited by6 cases

This text of 22 A.D. 95 (Segal v. Cauldwell) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Segal v. Cauldwell, 22 A.D. 95 (N.Y. Ct. App. 1897).

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Opinions

Ingraham, J.:

We agree with the learned justice who made the order appealed from that a defendant, by failing to move before answer, waives his absolute right to require a non-resident plaintiff to give security for costs. Where a motion is made after answer, the application is addressed to the discretion of the court, and some fact must be shown to excuse the delay. The court below appreciated this rule, but held that in this case the discretion should be exercised in favor of the application, and we do not think that we would be justified in reversing it in the exercise of that discretion. It appeared that the complaint was served about a month before the commencement of the summer vacation, and that the anwer was not served until after the vacation had commenced. The answer having been served on July 28, 1897, this motion was made on August 28,1897. It thus appears that the delay was during the summer vacation, and at a time when, from the necessities of the case, counsel are in the habit of taking their vacation. It is this fact that is before the court, and it is quite proper to consider it in determining whether the delay in moving, occurring just at the end of the busy time of the year, was an excuse for not making the application before the service of the answer. We think that this fact was sufficient to allow the court below to exercise its discretion in determining whether the delay was excusable. The right of the defendant to have required the plaintiff to give security for costs, if the application had been in time, is not questioned. The court below had before it a fact which justified its considering whether or not the application when it was made should be granted, and we do not think that we should interfere with its determination of that question.

[97]*97The order appealed from is affirmed, with ten dollars costs and ' disbursements.

Williams and Patterson, JJ., concurred; Van Brunt, P. J., and O’Brien, J., dissented.

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Ingraham, J.:

We agree with the learned justice who made the order appealed from that a defendant, by failing to move before answer, waives his absolute right to require a non-resident plaintiff to give security for costs. Where a motion is made after answer, the application is addressed to the discretion of the court, and some fact must be shown to excuse the delay. The court below appreciated this rule, but held that in this case the discretion should be exercised in favor of the application, and we do not think that we would be justified in reversing it in the exercise of that discretion. It appeared that the complaint was served about a month before the commencement of the summer vacation, and that the anwer was not served until after the vacation had commenced. The answer having been served on July 28, 1897, this motion was made on August 28,1897. It thus appears that the delay was during the summer vacation, and at a time when, from the necessities of the case, counsel are in the habit of taking their vacation. It is this fact that is before the court, and it is quite proper to consider it in determining whether the delay in moving, occurring just at the end of the busy time of the year, was an excuse for not making the application before the service of the answer. We think that this fact was sufficient to allow the court below to exercise its discretion in determining whether the delay was excusable. The right of the defendant to have required the plaintiff to give security for costs, if the application had been in time, is not questioned. The court below had before it a fact which justified its considering whether or not the application when it was made should be granted, and we do not think that we should interfere with its determination of that question.

[97]*97The order appealed from is affirmed, with ten dollars costs and ' disbursements.

Williams and Patterson, JJ., concurred; Van Brunt, P. J., and O’Brien, J., dissented.

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Bluebook (online)

22 A.D. 95, Counsel Stack Legal Research, https://law.counselstack.com/opinion/segal-v-cauldwell-nyappdiv-1897.

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