Belch v. Delaware & Hudson Co.

Scott, J.: The plaintiff is a non-resident, suing upon a cause of action which arose without the State. Defendant moves for security for costs. Its motion has been denied mainly because a previous motion for the same relief was denied and no leave has been given to renew. [868] The former motion was made in April, 1914, after defendant had answered. Since all the necessary facts existed entitling plaintiff to security it must be assumed that the former motion was denied in consequence of the rule which has long prevailed in this department that a defendant by answering before moving for security for costs will be deemed to have waived his absolute right to such security, which then becomes a matter of discretion of the court which ordinarily will not be exercised unless defendant shows some sufficient reason for not having moved before issue joined. (Fabrik S. V. A. Gesellschaft v. Nease, 117 App. Div. 379.) Since the former motion was denied in this case the Legislature has amended section 3272 of the' Code of Civil Procedure by expressly permitting a defendant, in a proper case, to move for security for costs “ at any time.” As amended the section now reads: “Where security for costs is required to be given, the court in which the action is pending, or, except in a case specified in the last section, a judge thereof, upon due proof, at-any time, by affidavit, of the facts, must make an order requiring the plaintiff ” to give security for costs. (Laws of 1915, chap. 635.) The obvious purpose and effect of this amendment is to abrogate the rule heretofore prevailing in this department and above expressed, so that we may no longer hold that a defendant has waived his absolute right to security, merely because he has omitted to move before answering in the action. If this section had been thus amended before the former motion for security was made, such motion would undoubtedly have been granted, and we are of the opinion that the adoption of the amendment has so far changed the conditions under which the former motion was denied that such denial should not be considered as a bar to the assertion of an absolute right which the defendant now has. The amendment is equivalent to the creation of a new state of facts which permits the renewal of the motion as a matter of right. (Veeder v. Baker, 83 N. Y. 156; .Haskell v. Moran, 117 App. Div. 251.) The amendment is merely a regulatory one, and since no contrary intent is expressed in the amendment itself, it must be construed as operative upon litigations pending when it was adopted. (Laird v. Carton, 196 N. Y. 169.) [869] The result is that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted. Clarke, P. J., McLaughlin, Smith and Page, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted.