Washburne v. Langley

16 Abb. Pr. 259

• Court: New York Supreme Court
• Decided: May 15, 1863
• Status: Published

Opinion

By the Court.

*—Scrugham, J.

The statutory provision for obtaining security for costs from non-resident plaintiffs is not inconsistent with the Code, and is, in substance, applicable to the actions thereby provided. Therefore, it is not repealed by it. (Code, § 471.)† The power of the court or judge making the order for securityto stay the plaintiffs’ proceedings until the securities he filed and the sureties justify, if excepted to, is derived from the statute, and is the only method therein provided to compel the plaintiffs to file the security as ordered. It is a necessary part of the statute, without which it would be of little effect; and as by section 471 the whole provision is saved from repeal, section 401, forbidding the granting of an order ex parte for a longer stay than for twenty days, must be regarded as inapplicable to such proceedings.

The order stayed the plaintiffs’ proceedings until the sureties should justify, if excepted to; and, by the fifth section of the act, the defendant is given twenty days, after the filing of the bond and notice thereof, to except to the sufficiency of the sureties.

He cannot be deprived of this statutory right by justification before exception. The time is given to him, that he may inquire into the circumstances of the sureties, and satisfy himself of their responsibility. Again, it might be possible for sureties to justify on the execution of the bond, and, from subsequent insolvency or other cause, impossible for them to do so twenty days thereafter.

True, the defendants’ exception will not entitle them to examine the sureties, or render it necessary for them to justify otherwise than by affidavit, and it may sometimes happen that a defendant will postpone excepting, solely for the purpose of delaying the plaintiff; but the non-resident plaintiff may prevent this by filing his. security at the commencement of the action, and, if he neglect to do so, he cannot justly complain of the delay to which the omission will expose him.

The order should be affirmed, with costs.

Present, Bbown, P. J., Scbughah and Lon, JJ.

The principle of the decision, upon this point, seems to be that where existing statutory provisions furnish a remedy which is not inconsistent with the Code of Procedure, and; in substance, applicable in actions under it, the exception contained in section 471 keeps in force all the provisions of the existing statute on the subject, no matter how inconsistent some of them may be with the Code. That is to say, that when there is a provision of the Revised Statutes, the general object of which, and some of the sections of which are not inconsistent, and are applicable, other incidental regulations are retained, although they may be inconsistent. Compare, on this subject, Hammond a. Tillotson (18 Barb., 332); Mann a. Provost (3 Ante, 446); St. John a. Pierce (22 Barb., 362); Wood a. Staniels (3 Code R., 152); Traver a. Traver (3 How. Pr., 351; S. C., 1 Code R., 112); Townsend a. Townsend (2 Sandf., 771); Bank of Commerce a. Rutland & Washington R. R. Co. (10 How. Pr., 1).