
    United States, For the Benefit of Henry Collins, Appellant, v. Anson M. Bangs, Sole Surviving Partner of the Firm of Hughes Brothers & Bangs, and The United States Fidelity and Guaranty Company, Respondents.
    Second Department,
    October 12, 1909.
    Costs — security—failure to move — loches—waiver.
    Even where the right to security for costs is absolute that right may he waived by failing to move promptly.
    A motion for security for costs made after the joinder of issue and only a week before the date set for trial should he denied in the absence of a valid excuse for the delay.
    Hirschberg, P. J., dissented.
    
      Appeal by the plaintiff, the United States, for the benefit of Henry Collins, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 9th day of March, 1909, as resettled and amended by an order entered on the 30th day of March, 1909, directing the plaintiff to file an undertaking for security for costs.
    
      Henry B. Hammond [Edward W. Norris with him on the brief], for the appellant.
    
      Parke L. Woodward [Summer Bowman and James E. Gaynor with him on the brief], for the respondents.
   Burr, J.:

The firm of Hughes Brothers & Bangs, of which the defendant Anson M. Bangs is the surviving partner, entered into a contract with the United States government to dredge Bay Ridge channel and Rod Hook channel in Hew York harbor. Pursuant to the provisions of an act of Congress' passed August 13, 1894 (28 U. S. Stat. at Large, 278, chap. 280; 2 U. S. Comp. Stat. [1901] 2523),' they gave a bond upon which the defendant the United States Fidelity and Guaranty Company was a surety, conditioned for the making of prompt payment to all persons supplying to them labor or materials in the prosecution .of the work. The act further provided that any such person to whom payment had not been made should have a right of action and be authorized to bring suit in the name of the United States against the contractor and liis sureties, and that the court in which the action is brought might require security for costs in case judgment is for the defendant. This action was brought under the provisions of said act on the 12th day of Hove tuber, 1908. Issue was joined by service of the answer of the defendant Bangs on December 18, 1908, and the answer of the defendant United States Fidelity and Guaranty Company on January 12, 1909. The case was noticed for trial for the February term and was actually set down to be tried on March ninth. On .the second day of March orders to show cause were obtained, returnable March fourth, why the plaintiff should not give security for costs. From the orders granting the motions this appeal is taken.

The only question to be considered is whether the defendants have waived their right to demand such security. The practice seems to be settled in this department and in the First Department that, even when the right to security for costs is absolute, that right may be waived by failing to move promptly, and that failure to require such security before serving the answer will, in the absence of a valid excuse for delay, be such loches as will amount to a waiver. (Buckley v. Gutta Percha & Rubber Mfg. Co., 3 Civ. Proc. Rep. 428; Turell v. Erie R. R. Co., 46 App. Div. 296; Henderson, Hull & Co. v. McNally, 33 id. 132; Fabrik S. V. A. G. v. Nease, 117 id. 379.)

In this case the defendants knew, as soon as the action was brought, all of the facts which entitled them to demand security. They not only served their answers, but the case was noticed for trial and actually set down for trial before the motion was made. The motion was too late. No excuse was offered for the delay. There ivas, therefore, nothing to call upon the court at Special Term to exercise its discretion favorably to the defendants, and its action is reviewable here. (Hagar v. Radam Microbe Killer Co., 119 App. Div. 839.)

The order appealed from should be reversed, with ten dollars costs and disbursements.

Gaykor, Rich and» Miller, JJ., concurred ; Hirschberg, P. J., dissented.

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.  