
    Churchman v. Merritt et al.
    
    
      (Supreme Court, General Term, First Department.
    
    November 23, 1888.)
    1. Costs—Secueity eor—When Required—Discretion op Trial Court.
    Under Code Civil Proc. N. Y. § 3268, giving a defendant the right to require security for costs where the plaintiff is a non-resident, the court has no discretion, but is bound to grant the application, when made with diligence.
    2. Same—Property op Non-Resident in the State.
    The fact that a non-resident plaintiff has sufficient property in the state to satisfy a judgment for costs cannot affect defendant’s right to security.
    3. Same—Order—Notice.
    Under section 3272, providing that, where security for costs is required to be given, the court or a judge thereof, “upon due proof, by affidavit, of the facts, must make the order, ” the order may be made without notice.
    Appeal from special term, Hew York county; O’Brien, Justice.
    Action by Anna E. Churchman against Hannah B. Merritt, George Merritt, and Edward H. Brown for the reformation of a bond and mortgage. An order requiring the plaintiff, as a non-resident, to give security for costs, was vacated at special term, and defendants appeal.
    Argued before Van Brunt, P. J., and Daniels and Bartlett, JJ.
    
      Marshall P. Stafford, for appellants. James E. Chandler, for respondent.
   Daniels, J.

The action was commenced on the 20th of June, 1888, and on the 22d day of the same month an order was made upon an affidavit stating the plaintiff to be a resident of the state of Pennsylvania, requiring her to file security for costs. Upon an affidavit showing that her property was situated in this state, and under the control of at least one of the defendants, and afforded ample security for the costs in this action, the order was vacated. The decision vacating the order requiring security to be filed was also based in part upon the authority of Todd v. Marsily, 26 Wkly. Dig. 244. But in that case the application for security was denied on account of the unreasonable delay in making it, while no such objection was or could be raised in this case. Section 3268 of the Code of Civil Procedure has vested the defendant with the right to require security for costs to be filed in certain cases, including that of a non-resident plaintiff, and the enactment has been made in such language as to afford the court no discretion over the application where it may be made with diligence, and such is the view which has been expressed and followed in decided cases, (Healy v. Railway Co., 1 Civil Proc. R. 15; Buckley v. Manufacturing Co., 3 Civil Proc. R. 428;) and this construction was referred to as that which the statute should receive in Robertson v. Barnum, 29 Hun, 657. It is further confirmed also by section 3271 of the Code, providing for other eases in which the court may, in its discretion, require security to be given. Subjecting this authority to the discretion of the court, as it was expressly done by this section, is an indication that it was not intended that the right to security in the cases previously provided for should be in any manner dependent upon the discretion of the court, where the application for the order should be made with diligence; and, as the defendants were entitled to the order in this instance, they could not be deprived of their right to it by reason of the circumstance that the plaintiff had ample property in the state from which the costs of an unsuccessful litigation on her part could be collected by the defendants. The right to the order has not been subjected to that condition. This order was made without notice, but the language employed in the enactment of section 3272 of the Code of Civil Procedure permits that to be done. It is true that this section is no broader than the law as it was contained in the Eevised Statutes, (2 Rev. St. Edmonds’ Ed. p. 644, § 3,) under which the practice prescribed and followed required the order to be made either upon notice or a preceding order to show cause. Champlin v. Pierce, 3 Wend. 445. That undoubtedly is the more judicious mode of proceeding, but at the same time whether it shall be followed must depend upon the discretion of the court or judge to whom the application may be made. As the law is enacted, an absolute order in the first instance is not unauthorized. The order from which this appeal has been brought should be reversed, with the usual costs and disbursements to abide the event of the action.

Van Brunt, P. J., and Bartlett, J., concur.  