
    Michael Crow, Respondent, v. The New York Transportation Company, Appellant.
    (Supreme Court, Appellate Term,
    June, 1909.)
    Security for costs — Persons who may he required to give —Persons who are nonresidents — Office or place of business.
    The docks of a steamship company cannot he considered the office or place for the regular transaction of business of a dock laborer, employed on a wharf by the hour, whose employment has ceased and who has only a reasonable expectation of re-employment because his name is still retained on the list of employees, within the meaning of the provisions of the Code of Civil Procedure relating to requiring security for costs.
    Dayton, J. dissents.
    Appeal by the defendant from an order of the City Court of the city of New York.
    Arthur K. Wing (George S. Wing, of counsel), for appellant.
    Bristor & Gray, for respondent.
   Lehman, J.

The plaintiff is a resident of New Jersey who has brought an action for personal injuries against the defendant. The defendant secured an ex parte order requiring the plaintiff to file security for costs, and now appeals from the order vacating and setting aside this order. The motion papers disclose that the plaintiff is a dock laborer who has been employed by the Old Dominion Steamship Company at Pier 26 for three years, with the exception of nine months during said period; that his name still remains on the roll of employees of said company, and he intends, as soon as he is able to go to work, to resume his employment there; that all the business he has is transacted at the docks and in the office of the Old Dominion Steamship Company, and that the said place is considered by him his office for the regular transaction of business in person.

The assistant time keeper of the company makes an affidavit, stating that the name of the plaintiff has been retained on the roll of employees of the said company, and he has no doubt but that he will be allowed to resume bis old employment as soon as he is able to go to work. The defendant shows in opposition that the plaintiff was a member of the night gang and that he worked by the hour, receiving thirty cents for the time he was actually employed. The justice at Special Term vacated the order requiring the giving of security for costs, on the ground that the plaintiff had brought himself within section 3160 of the Code, relying for his authority on Wyckoff v. Devlin, 8 Civ. Pro. 138. That case has decided only that a non-resident of the State of New York who has an office in the city of New York where he regularly transacts business in person cannot be required to give security for costs in an action in the City Court.

A dock laborer employed on a wharf by the hour, whose employment had ceased by reason of the injuries for which this action is brought, and who at the time when the summons was served had no employment in the city, but simply a reasonable expectation of re-employment because his name was still retained on the list of employees, can in no way be described as a person who has an office or place for the regular transaction of business.

The order appealed from must he reversed, with ten dollars costs and disbursements to the appellant on this appeal, but without costs below.

Seabuey, J., concurs.

Dayton, J. (dissenting).

An office is a place of business to or from which a man can be traced for. the transaction of his business, no matter what his occupation may be. In my opinion, on the facts here, the order was right, and should be affirmed.

Order reversed, with ten dollars costs and disbursements to appellant, without costs.  