Johnson v. Metropolitan Street-Railway Co.

RUMSEY, J. This action was begun on the 7th of August, 1900. The complaint was served on the 29th of September, 1900. The defendant’s time to answer was extended on the 17th of October for 15 days. The order requiring the plaintiff to give security for costs was procured on the 26th of October, before the answer was served, and the answer was served on the 30th day of October. The court vacated the order requiring the plaintiff to give security upon the ground of laches. We think the decision was erroneous. The rule is settled in this department that the absolute right of the defendant to require a nonresident plaintiff to give security for costs is waived unless the order is applied for before answer. Henderson, Hull & Co. v. McNally, 33 App. Div. 132, 53 N. Y. Supp. 351. The defendant complied with this rule, and obtained the order within the time required by it. The affidavits upon which the order was obtained were sufficient to warrant it; and, in the absence of any proof on the part of the plaintiff to overthrow the facts stated in those affidavits, there was nothing to deprive the defendant of the right to have security. The order appealed from must therefore be reversed, with $10 costs and disbursements, and the motion to vacate the order requiring security for costs denied., with $10 costs. [856] VAN BRUNT, P. J., and PATTERSON and INGRAHAM, JJ., concur.