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O’BRIEN v. HEARN et al.

(Circuit Court, S. D. New York.

September 16, 1903.)

1. Costs—Security by Nonresident Plaintiff—Delay in Making Application.

A nonresident plaintiff, who may be required by defendant to give security for costs under the statute, will not be relieved from such requirement by a federal court because of defendant’s delay until after answer in moving for the security, where no special prejudice to plaintiff is shown to have resulted.

¶1. See Costs, vol. 13, Cent Dig. § 466.

On Application to Vacate ex Parte Order Directing Plaintiff, a Nonresident, to File Security for Costs.

Edward P. Lyon, for plaintiff.

Nadal & Carrere, for defendants.

LACOMBE, Circuit Judge.

This application is made upon the theory that because defendants did not move at once, but obtained extensions of time to answer, and answered the complaint, they are to be refused the security provided for by the Code on the ground of laches. Neither the Code nor the rules limit the time within which application should be made to require plaintiff to file security for costs. Nevertheless the state courts have adopted the practice of refusing such relief, when there has been delay in making the application. Buckley v. Gutta Percha & Rubber Mfg. Co., 3 Civ. Proc. R. 428; Thomas v. Mutual Protective Union, 49 Hun, 171, 2 N. Y. Supp. 195. This practice, however, has not been followed in this district, at least when no special prejudice to plaintiff’s right is shown to have resulted from defendant’s delay in moving. Stewart v. The Sun (C. C.) 36 Fed. 307. Our calendars are now overcrowded with litigations like this, where the action might just as well have been brought in the state courts. If parties plaintiff in accident causes, so called, will insist upon their right to come here because they happen to live in Jersey City instead of Brooklyn, and thus delay and impede the trial of controversies involving federal questions, the least they can do is to comply with the provisions requiring them to secure the costs of the litigation, should it be found that their action is without merit.

Motion is denied.

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