
    Charles M. Myers and Edward M. Cole, as Receivers of Telephone, Telegbaph and Cable Company of America, Plaintiffs, v. Thomas W. Stephens, Defendant.
    (Supreme Court, New York Special Term,
    February, 1907.)
    Security for costs — Time for making motion — Waiver by pleading.
    A defendant in an action brought by nonresident plaintiffs is entitled to security for costs as a matter of right under section 3268 of the Code of Civil Procedure.
    Motion to compel plaintiffs to give security for costs.
    Wilcox & Brodek, for motion.
    Lucius L. Gilbert, opposed.
   Giegerich, J.

Inasmuch as the plaintiffs are nonresidents the provisions of section 3268 of the Code of Civil Procedure apply, and the defendant is entitled to security for costs, as of right. Pursley v. Eodgers, 44 App. Div. 139. "Under this section it is the nonresidence which gives such right, while under section 3271 the court may, in its discretion, require security to be given by a plaintiff suing in a representative capacity. Thus it will be seen that the determining factor in the former case is the nonresidence of the plaintiff, irrespective of the capacity in which he is suing, while in the latter it is the capacity alone which controls. Motion granted, with ten dollars costs to the defendant to abide the event.

Motion granted, with ten dollars costs to defendant to abide event.  