Worthington v. Warner

19 Abb. N. Cas. 266

Opinion

Hyatt, J.

The plaintiff has been required to file security for costs, and the time of the defendant to answer has been extended a certain number of days after the plaintiff files such security. Both directions are contained in the same order. The plaintiff asks that the order be-modified by striking out the provision extending the time to answer, upon the ground that the defendant has not-sworn to merits.

Until the plaintiff files security for costs, he has no standing in court. The defendant should not be required to make and file an affidavit of merits until the plaintiff' decides whether or not he will put himself in a position to enable him to prosecute his action. The court had the unquestioned authority thus to enlarge the time to answer (Bronson v. Freeman, 8 How. Pr. 492).

Motion to modify order heretofore entered denied, but without costs.