Teal v. Yost

Decided April 1, 1889

The Superior Court of New York City · decided 1889-04-01

Motion by the defendant for security for costs upon the ground that the plaintiff was a non-resident. The court has no discretion to deny this motion. The defendant has an absolute right to security for costs. Code Civ. Pro., §§ 3268, 3272. The defendant has not lost this right by loches, as this motion was made at the time of answering and within twenty days after service of the summons and complaint.

Decided 1889-04-01

O’Gorman, J.

¶1—This is a motion on the part of the defendant, who has answered in the action, for security for costs, under section 3268 of the Code of Civil Procedure.

¶2This is an action on a written agreement executed in Pennsylvania, and, under the laws of that state, entitled to be regarded as an instrument under seal.

¶3Whether it should be so regarded for the purposes of this action, and whether the action is or is not barred by the statute of limitations, will probably be the main issue to be tried.

¶4The granting of the defendant’s motion is within the discretion of the court, and, in this case, the motion should, in my opinion, be denied. Todd v. Marsily, 7 N. Y. State Rep., 872; Churchman v. Merritt, 15 Civ. Pro. R., 245; Stevenson v. N. Y., L. E. & W. R. R. Co., 16 N. Y. State Rep., 787.