The plaintiffs being a foreign corporation, brought this action without filing security, as provided by the Revised Statutes. The defendant did not appear and the plaintiffs obtained judgment by default. A motion was made at special term to set. aside the judgment for irregularity, because security for costs was not filed before suit, and the motion was denied.
It must be conceded that filing security for costs was not necessary to give jurisdiction to the court. It was certainly an irregularity for which the proceedings would have been set aside if the motion had been made in season; but it was an irregularity which could be cured at any time by filing the security. (Bank of Michigan v. Jessup, 19 Wend. 10.) In that case security was filed after notice of the motion to set aside the proceedings was given, and the court held it sufficient and denied the motion. If security could be filed after commencing the suit it is apparent that it is not a necessary act to confer jurisdiction, and if the court will permit the irregularity to be cured before judgment, it would be idle to say that the defect should not be cured after judgment. There can be no doubt that the court now could order the plaintiffs to file security mmo gyro tuno, if any good could result therefrom, but it certainly is of no use to go through the vain ceremony of filing security when it is apparent that there can be no costs to the defendant to be secured.
The defendant must be considered as having waived his right to security by the delay until the judgment was entered, and such security has now become useless.
If the judgment should be opened upon the merits, the *215defendant then might apply for an order to file such security.
The excuse offered for the default appears to be a mistake as to delivering the papers to an attorney to defend the action, and this, with the affidavit of merits, would in ordinary cases be sufficient to open the default and allow the defendants an opportunity to defend. But in this case the affidavit on the part of the plaintiffs shows a clear case as to the plaintiffs’ claim, and justifies a denial of the motion. In such a case the defendants should be required to disclose their -defence before setting aside a judgment regularly obtained. The order appealed from should have allowed such privilege to the defendants on a renewal of the motion.
Whether costs were properly granted on denying the motion, rested in the discretion of the judge presiding at the special term. In such a case we do not entertain an appeal merely to review the allowance of costs. The order appealed from is affirmed without costs and without prejudice to a renewal of the motion on the merits at special term, on disclosing the defence intended to be set up by the defendants, and paying the costs of this motion below at $10.
Ordered accordingly.