
    MELLEN v. HUTCHINS.
    
      Monroe County Court;
    
    February, 1880.
    Justices’ Courts.—Security for Costs.
    A justice’s or municipal court cannot require a non-resident to give security for costs ; nor can the county court, in an action commenced in a court not of record.
    
    Mary E. Mellen, the plaintiff and respondent, resides at Worcester, Mass.; Charles D. Hutchins, the. defendant and appellant, in the city of Rochester, N. Y. The action was brought by long summons in the municipal court of the city of Rochester, which is not a court of record, Judgment was recovered in favor of the respondent, and from that judgment the appellant appealed to this court. The respondent applied for a commission to take her own testimony in Massachusetts, and that of a witness in Akron, Ohio, under section 887 et seq. of Code. Upon the hearing of that application, the appellant objected that the respondent should file security for costs, and an order was then made for the respondent to show cause why she should not file such security, and the two applications were heard together.
    
      Fanning & Williams, for plaintiff, respondent.
    
      T. F. Foe, for defendant, appellant.
    
      
       The provision of section 3,368 of the Code of Civil Procedure, that-the defendant in an action in a court of record may require security for costs, in certain classes of cases, appears to be restricted to the supreme court, superior city courts, the county courts and the New York marine court, by section 3,847, subdivisions 13, 4.
    
    
      
      
        Code Civ. Pro. § 3,- subd. 6.
    
   Morgan, J.

[After stating the facts.]—Upon the papers before me there seems to be good reason why the commissions should issue as applied for. The only question is whether security can be required to be filed by the respondent on the ground of her non-residence, under 2 R. 8. Edm. ed. 644, § 1, clause 1. It was held in Fennor v. Dickinson (4 Den. 84), that an appeal to the court of common pleas, from a justice of the peace, is but a continuation of the proceedings previously had, or action begun in the justice’s court. To the same effect is the case of Traver v. Nichols (7 Wend. 434). And it was held in the case of People v. Common Pleas Judges (1 Cow. 576), that a court of common pleas could not require security beyond that prescribed by the statute, and could not require a defendant to give additional security because that given was insufficient.

It was also decided in Payne v. Hathaway (4 N. Y. Leg. Obs. 21), that a justice of the peace has no power to' compel a non-resident plaintiff to file security for costs under the statute in consideration here, and that this statute only applies to courts of record. Under the statute of 1831 (c. 300, § 32), the respondent being a non-resident of this county, might have been compelled to file security upon procuring a short summons. Whether, being a non-resident, she was entitled to a long summons, is not necessary to be considered here 5 ■but I am compelled, by the decision in Payne v. Hathaway, supra, to hold that the municipal court, not being a court of record, could not have compelled her to file security under the general statute relating to security for costs (2 R. S. 644).

From the other cases above cited it seems equally clear that if the security for costs could not be compelled to be filed at the commencement of the action, the county court (which stands in the same relation to the municipal court as the court of common pleas held toward justices of the peace) cannot now compel security to be filed.

* Special County Judge.

The commission may, therefore, issue in the usual form, and the respondent need not file security for costs; but, inasmuch as the question does not seem before to have been passed upon, so far at least as any cases have been called to my attention, neither party shall have costs of this application as against the other.  