Titus Sheard Co. v. Morrissey

Beekman, P. J. The plaintiff is a domestic corporation having its place of business at Little Falls, in this state, and is, therefore, a nonresident of the county of -Mew York, within the -meaning of the statute which regulated the issuing of the summons in the court below, Upon the trial, the justice dismissed the complaint solely upon the ground that the plaintiff, being a nonresident of the county, should-¡have given security for -costs. This ruling proceeded upon the assumption that the plaintiff was bound to take out a short summons, in which event such security was necessary.' Section 1299, M. Y. City Consol. Act. The summons which was issued, however, was what is known as a “ long summons,” and the contention of the appellant is that it was optional with him to commence his action by either a long or a short summons, and having elected to sue out the former, he was not obliged to give security for costs. ' There can be no doubt ofrihe correctness of this claim, which has -been authoritatively settled by the General Term of the Court of Common Pleas in the case of Glass v. Place, 5 Daly, 110. It is true that the contrary had been previously held by the same court [123] in Haullenbeck v. Gillies, 7 Abb. Pr. 421, and again in Dean v. Cannon, 1 Daly, 34; but both of these pases were decided under chapter 344, Laws of 185Y, governing the matter, before its amendment by chapter 484 of the Laws of 1862, and have been completely nullified by the amendatory act referred to. In Glass v. Place, supra, the court says, page 111: “These provisions of the act, as thus amended, expressly afford nonresident plaintiffs the right to elect that a short summons should be issued in their favor, on giving security for costs> and only require such security in case of such election.” There has been no subsequent change in the statute referred to¡, which is now embodied, in precisely the same language, in sections 1298 and 1299 of the Consolidation Act (chap. 410, Laws of 1882), which are still in force (The Greater Hew York Charter, § 1369); nor has the construction given to it in the case of Glass v. Place, which was obviously correct, ever been questioned in any case since reported. As the judgment below was clearly erroneous, it should be reversed, and a new trial (Ordered, with costs to the appellant to abide the event. Gildebsleeve and Giegerich, 'JJ., concur. Judgment reversed and new trial ordered, with costs to appellant to abide event.