Segal v. Cauldwell

O’Brien, J. (dissenting):

The action was commenced on June 3, 1897. Fifty-five days thereafter, on July 28, 1897, the defendant’s answer was served. Thirty-one days after answer served, and eighty-six days after the action was begun, on August 28,1897, the motion was made, upon an affidavit of the attorney, which simply stated that the plaintiff is not a resident of the State, and that the defendant demands security for costs. ¡Not a word of explanation or excuse is given for the delay in ■ making the motion. The question is, therefore, whether the defendant was entitled to such order as a matter of right, or whether it was discretionary. If the latter, it must necessarily mean a legal discretion, which is to be exercised upon some facts justifying the court’s action. We must regard the rule as settled in this State that, if the defendant delays his application for security until after answer served, he has waived his absolute right to the same, and the court will, in its discretion, allow his application only when he furnishes a satisfactory reason for the delay. This rule naturally follows from an underlying one, that an application for security for costs must be made promptly, and is waived by delay. (Buckley v. Gutta Percha, etc., Mfg. Co., 3 Civ. Proc. Rep. 428; McDonald v. Peet, 7 id. 200; Todd v. Marsily, 15 id. 247, note; Weber v. Moog, 12 Abb. N. C. 108.) In a similar case (King v. Met. St. Ry. Co., N. Y. L. J., Sept. 25, 1897), the only difference being that the order was obtained ex parte, and that decision was made on a motion to vacate on the papers on which the ex parte order was granted, the same justice who made this order correctly states the rule : “A motion for security for costs must be made at the first opportunity. The defendant, with full knowledge of all the facts, served an answer before applying for and obtaining the order requiring security to be given. The defendant, in serving the answer before applying for security, waived its rights to have security given. ■ (Schwartz v. Scott, 70 N. Y. St. Repr. 381; Steven-*98son v. N. Y., L. E. & W. R. R., 49 ,Hun, 169 ; Buckley v. Gutta Percha, etc., Mfg. Co., 3 Civ. Proc. Rep. 428.) No explanation is given for the delay in obtaining the order. Motion granted, with $10 costs.”

In Schwartz v. Scott (25 Civ. Proc. Rep. 53), after reviewing the cases showing that after answer the granting of a motion for security for costs is a matter of discretion and not a matter of right, the judge there denied the motion because no facts were presented showing why it was not more promptly made. We think it would be introducing confusion into the practice if we were to change what we must now regard as a well-established pule, which in the present instance was departed from, it appearing that the motion was made long after the answer was served, and not a single fact being presented to excuse the delay.

There being no facts, therefore, upon which the court could rest its discretion, it was error to grant the motion, and the order should accordingly be reversed, with ten dollars costs and disbursements and the motion denied, with ten dollars costs.

Van Brunt, P. J., concurred.

Order affirmed, with ten dollars costs and disbursements.