Vulcanite Portland Cement Co. v. Williams

Seabury, J. This is a motion to compel the plaintiff, a foreign corporation, to give security for costs under subdi [406] vision 2 of section 3268 of the Code of Civil Procedure. The action is in replevin and the plaintiff opposes this motion upon the ground that it has already given security for costs by giving an undertaking in replevin, under section 1699 of the Code of Civil Procedure. The question presented for determination, therefore, is whether in an action of replevin a plaintiff, being a foreign corporation which has given an undertaking under section 1699, can be compelled to give a further undertaking under section 3268. No case under the present Code, deciding this precise question, has been called to my attention. Under the provisions of the old Code of Procedure the question was the subject of conflicting decisions. Gelch v. Barnaby, 7 Abb. Pr. 19; Boucher v. Pia, 14 id. 1; Hodges v. Porter, 10 Hun, 244; Wisconsin Marine & Fire Ins. Co. Bank v. Hobbs, 22 How. Pr. 494. An undertaking given under section 1699 of the Code accords to the defendant the same rights and the same measure of protection that are secured under an undertaking given under section 3268. The bond in an action of replevin under section 1699 is broader in its provisions than a bond given under section 3268, and includes security for the costs of the action. John Church Co. v. Dorsey, 38 Misc. Hep. 542. Such a bond also covers the costs of an appeal. Tibbies v. O’Connor, 28 Barb. 538. The .undertaking which the plaintiff has already given under section 1699 serves all the purposes which would be secured by a bond given under section 3268, and no good reason exists for requiring additional security. The fact that under section 1703 of the Code of Civil Procedure a defendant is allowed three days within which to except to the sureties on the undertaking in replevin given under section 1699, whereas under section 3274 of the Code of Civil Procedure ten days is allowed within which to except to the sureties on an undertaking given as security for costs under section 3268, does not alter the character of the undertaking. The scope of the undertaking in replevin under section 1699 is more comprehensive than an undertaking given for security for costs under section 3268, and the fomper includes all the objects covered by the latter. An undertaking under section 1699 is a sub [407] stantial compliance with the provisions of section 3268, and where a plaintiff has already given a bond in replevin under section 1699 he cannot be compelled to give' an additional undertaking under section 3268. The motion is denied. Motion denied.