Opinion
June, 1895.
Charles de Hart Brower, for appellant.
David J. Newland, for respondents.
The right of a defendant in an action to security for costs, where the plaintiff is a nonresident, is an absolute one, and does not rest in the discretion of the court. Buckley v. Gutta Percha Rubber Co., 3 Civ. Proc. Rep. 429; 93 N.Y. 637; McDonald v. Peet, 7 Civ. Proc. Rep. 200. Whether or not a party against whom such a motion is made is a nonresident is to be determined from the evidence submitted, and in this case such evidence was by affidavit. The ordinary rules of evidence governing the testimony of witnesses upon the trial of disputed questions of fact are the same whether the trial be had upon oral testimony or the depositions of witnesses. Dietlin v. Egan, 46 N.Y. St. Repr. 762. In this case there was abundant evidence to sustain the decision made at the Special Term of the City Court. It is true that this was contradicted by opposing affidavits from which a contrary conclusion might have been arrived at, but it is not the province of this court to review a decision made upon disputed questions of fact.
Appellant, however, contends that the affidavits nowhere stated that the plaintiff did not have an office in the city of New York, and, therefore, did not bring himself within the provisions of the Code requiring security for costs. As there was a hearing of the motion for security on an order to show cause at which the plaintiff submitted affidavits tending to show residence, and the defendants' affidavits on their part tend to show facts and particulars of nonresidence, the question was fully and completely before the court below, and if it had been the fact that the plaintiff did at that time have an office in the city of New York he could have shown it by affidavit, when, although an actual nonresident of the state, he would have been deemed a resident for the purposes of giving security for costs. Mitchell v. Dick, 8 Misc. 100. The case of Stephenson v. Hanson, 4 Civ. Proc. Rep. 104, is clearly distinguishable from this. In the case before us the plaintiff was called into court by an order to show cause, and undertook to show that he was a resident, and it rested on him to show everything possible to support his contention. Mitchell v. Dick, supra.
The order should, therefore, be affirmed, with costs.
BISCHOFF and PRYOR, JJ., concur.
Order affirmed, with costs.