
    (63 Misc. Rep. 524.)
    CRAIG v. W. & G. DU CROS, Limited.
    (Supreme Court, Special Term, New York County.
    June 15, 1909.)
    1. Costs (§ 110)—Security from Nonresident Plaintiff—Rights of Nonresident Defendant.
    Inasmuch as Code Civ. Proc. § 3268, requiring security for costs from nonresident plaintiffs, does not limit the right to require security to resident defendants, the court has no power to impose such a limitation in the case of a defendant foreign corporation applying therefor.
    [Ed. Note.—For other cases, see Costs, Dec. Dig..§ 110.]
    2. Costs (§ 110) — Security from Nonresident Plaintiff — Discretion of Court.
    The security for costs in the case of a nonresident plaintiff, provided for by Code Civ. Proc. § 3268, belongs.to defendant as a matter of right, and does not depend on the discretion of the court.
    [Ed. Note.—For other cases, see Costs, Dec. Dig. § 110.]
    Action by Alvin M. Craig against W. & G. Du Cros, Limited. On motion to require plaintiff to give security for costs.
    Granted.
    Max D. Josephsen, for the motion.
    Slade, Slade & Slade, opposed.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   GIEGERICH, J.

Thé defendant moves for an order requiring the plaintiff, who is a nonresident, to give security for costs. The motion is opposed on the ground that the defendant is itself a nonresident, being a foreign corporation. The Code, however, has not limited the right to require such security to resident defendants (§ 3268), and this court has no power to impose such a limitation. The security provided by section 3268 belongs to a defendant as a matter of right, and in no wise depends upon the discretion of the court. The language of the Court of Appeals implying a distinction between resident and nonresident defendants, and upon which the plaintiff relies (Banes v. Rainey, 192 N. Y. 286, 294, 85 N. E. 71), was used with reference to other portions of the Code of Civil Procedure, under which it is discretionary with the court to grant such security.

Motion granted, with $10 costs.  