Citation Numbers: 17 Misc. 92, 39 N.Y.S. 332
Judges: Pryor
Filed Date: 5/15/1896
Status: Precedential
Modified Date: 1/13/2023
In compliance with a motion by defendants for security for costs on the ground of plaintiff’s nonresidence^ it w¿s ordered “ that the plaintiff * * * file with the clerk of this court an additional undertaking in the sum of $500, to be executed by the plaintiff and two sureties,” etc. An undertaking executed by two sureties, but not by the plaintiff, was duly furnished; and because not executed by the plaintiff it was returned to her attorney. Thereupon this motion is made to dismiss the complaint unless within thirty days' an undertaking be given pursuant to the. order requiring its execution by.the plaintiff.
Plainly, too, since it is the nonresidence of the plaintiff that gives the right to security for costs, an undertaking by such nonresident would not answer the exigency of the occasion. The evident policy of the statute is to supplement the unavailable liability of a nonresident plaintiff by the accessible responsibility of a resident . surety. Neither by the letter nor the reason of the law may the plaintiff be required, to unite in the undertaking for costs.
The provision in the order that the plaintiff execute the undertaking, being without authority in law, is a nullity, and as such is rightfully disregarded.
Motion denied, with costs.