Craig v. W. & G. Du Cros

Giegerich, J.

The defendant moves for an order requiring the plaintiff, who is a non-resident, to give security for costs. The motion is opposed on the ground that the defendant is itself a non-resident, being a foreign corporation. The Code, however, has not limited the right to require such security to resident defendants (§ 3268), and this court has no power to impose such a limitation. The security provided by section 3268 belongs to a defendant as a matter of right, and in nowise depends upon the discretion of the court. The language of the Court of Appeals, implying a distinction between resident and non-resident defendants and upon which the plaintiff relies (Banes v. Rainey, 192 N. Y. 286, 294), was used with reference to other portions of the Code of Civil Procedure, under which it is discretionary with the court to grant such security.

Motion granted, with ten dollars costs.