Hugunin v. Thatcher

Coxe, J. The defendant asks for an order compelling the complainant, who is a non-resident, to file security for costs. The application is opposed solely on the ground that it is made too late; the demand for security being served five days after the answer was filed. The provisions of the Bevised Statutes of New York relating to security for costs, (now sections 8268-3278 of the Codo of Civil Procedure,) are adopted by this court. Buie 4, Cir. Ct.; Buie 64, Dist. Gt.; Gonkl. Treat. (5th Ed.) 468; Lyman Ventilating, etc., Co. v. Southard, 12 Blatchf. 405. It will be seen, upon an examination of the sections referred to, that they are entirely silent as to the time when the defendant may require the security to be filed. There is nothing to warrant the construction that be must make the demand before issue joined. lie may — the plaintiff being a non-resident — make it at any stage of tho 106 litigation, provided be is not guilty of laches or bad faith. The courts of New York have so decided, and upon such a question their decision should be followed by this court. Burgess v. Gregory, 1 Edw. Ch. 449; Micklethwaite v. Rhodes, 4 Sandf. Ch. 434; Northrop v. Wright, 1 How. Pr. 146; Robinson v. Sinclair, 1 Denio, 628; 2 Wait, Pr. 572; 1 Barb. Ch. Pr. (2d Rev. Ed.) 102. There should be an order requiring the complainant, within 20 days, to file security in the sum of $250, and providing for a stay of proceedings in the usual form.