Di Stefano v. Peekskill Lighting & Railroad

Hirschberg, J.: The action is for negligence, brought by a servant in the employ of the defendant. At the time of the commencement of the action the plaintiff was a resident of the county of Westchester, where the venue is laid. The case was tried on the 9th day of March, 1904, and resulted in a nonsuit. On appeal to this court the judgment was reversed and a new trial granted. (See Di Stefeno v. Peekskill Lighting & R. R. Co., 107 App. Div. 293.) Before that decision was rendered the plaintiff left the State of New York and returned to Italy, the place of his nativity. The plaintiff’s attorney learned of his client’s departure in the fall of 1905, and promptly notified the [746] attorney for the defendant of the fact. Since that time nothing has been done by either side in the suit, it being substantially agreed between them that the matter should remain dormant until the plaintiff returned to this State. Plaintiff’s attorney learned in August, 1911, that the plaintiff was about to return to this State, and he thereupon communicated with the defendant’s attorney informing him of that fact. The defendant thereupon procured an ex parte order requiring the plaintiff to pay into court the sum of $500 as security for the costs in the action, or at his election to file an undertaking in the same amount. On motion of the plaintiff and on affidavits stating fully the history of the litigation as herein set forth, the order appealed from was granted by the same learned justice who made the ex parte order vacating the latter order. The main ground asserted in support of the order appealed from is that the defendant was guilty of laches in the long delay, and thereby lost all right to require security.- The authorities are numerous in support of the proposition that an application for security must be made promptly. I do not think, however, that the rule can be made to apply in strictness where the delay is the result of a mutual understanding between the parties. (See Cooke v. Metropolitan Street R. Co., 59 App. Div. 154.) This view would lead to a reversal of the order but for the fact that the original order requiring the security was irregular in that the amount required was double that authorized by the Code of Civil Procedure (§§ 3272, 3273). Those sections provide that the amount directed to be paid into court shall be the sum of $250 only and that the undertaking in lieu thereof shall be conditioned in a sum of at least that amount, the maximum amount to be obviously in the discretion of the court. In view of the irregularity of the order vacated the order appealed from should be affirmed, without costs, but without prejudice to a timely renewal of the application for security on notice. Jenks, P. J., Burr, Thomas and Carr, JJ., concurred. Order affirmed, without costs, but without prejudice to a timely renewal of the application for security on notice.