Opinion
August Term, 1898.
William C. Wolf, for the appellant.
L.E. Prendergast, for the respondents.
After procuring one extension of time the defendant McNally, upon the 20th day of May, 1898, served his answer. The other defendants defaulted in pleading. Upon the 23d day of May, 1898, the case was noticed for trial by the plaintiff and also by the defendant McNally. After this the defendants moved for security for costs, and their application was granted. This we think was, under the circumstances, erroneous. The defendants seem to have moved for security as matter of right. The rule with us is that the defendants' absolute right to compel a non-resident plaintiff to give security for costs is waived, unless it is asserted before answer. A subsequent application is addressed to the discretion of the court, and some fact must be shown to excuse the delay in making it. ( Segal v. Cauldwell, 22 App. Div. 95.) Here no such fact was shown. Indeed, the affidavit upon which the defendants moved proceeds solely upon the ground that it appears from the complaint — as in fact it does — that the plaintiff is a foreign corporation. With this fact thus before them, the defendants answered and noticed the case for trial without moving for security. That ended their absolute right. They might still have appealed to the discretion of the court upon showing some fact excusing the delay in moving. Having shown no such fact, but relying solely upon what they conceived to be their absolute right, their application should have been denied. There was nothing presented upon which the discretion of the court could have been exercised.
The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements of the appeal, and the motion denied, with ten dollars costs.
VAN BRUNT, P.J., INGRAHAM and McLAUGHLIN, JJ., concurred.
I concur in the result of this opinion because the rule therein stated seems to have been adopted in this department, and the question whether an application to compel a plaintiff to give security for costs can be made after answer is not an open one.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.