Hartford Quarry Co. v. Pendleton

By the Court.—Ingraham, F. J. —The plaintiffs filed security for costs pursuant to the statute. The defendant served upon plaintiffs’ attorney a notice that they did not accept the- bail put in by the plaintiffs. Ro justification afterwards took place, and no order to stay proceedings was obtained. Both parties proceeded in the cause, a trial has been had and a new trial granted. The defendant now moves for an order that plaintiffs file new security for costs. The delay of the defendant in moving for security, conceding that the notice was equivalent to an exception, was such as to render it improper to grant this motion. If the exception was good, then there was no bond filed, and the defendant, by his delay, must therefore be considered as having waived his right to it. [463] The notice was not, however, such an exception as is required by the statute, and the bond still remained as executed. The acts of both parties show that they so treated it. The motion now made was for new security. I have heretofore expressed the opinion in this case that no new bond can be ordered by the court, even if the sureties become insolvent. I see no reason to change that opinion. The foreign corporation obtains a right to sue on filing the security. That right is not affected by any subsequent failure of the sureties. The statute makes no such provision, and I do not think the court has the power to do so independent of the statutes. Besides, it is not usual, after a trial and verdict for the plaintiff, to grant such a motion. If security is necessary, it should be asked for in proper season; and it is the invariable practice of the court, where an order to stay is granted with such a motion, when the cause is about being reached, to vacate such stay for the reason above mentioned, viz., delay in making the motion. The motion was properly disposed of at the special term, and the order appealed from should be affirmed, without costs.