
    The Smith & Briggs Brass Works, Appellant, v. Isaac Kahn et al., Respondents.
    (City Court of New York, General Term,
    December, 1896.)
    1. Security for costs — Laches.,
    Neglect to promptly require security for costs at the first opportunity will defeat the application.
    
      2. Same.
    Failure of a defendant to apply for security for costs until after the service of the answer and notice of trial is a waiver thereof, unless defendant was ignorant of plaintiff’s nonresidence, and in such case he has the burden of proving his want of knowledge.
    Appeal from an order requiring the plaintiff to furnish security for costs.
    Samuel S. Watters, for appellant.
    Emanuel Jacobus,, for respondents.
   O’Dwyer, J.

This is an appeal from an order made at Special Term requiring the plaintiff to furnish security for costs.

This action was commenced upon the 22d day of August, 1896, by a personal service of the summons and complaint.

Upon the 28th day of August, defendants appeared, and at their attorney’s request, were given an extension of time to answer.

Upon the 3d day of September, a further extension of time to answer to the 9th day of September was given.

On the morning of the 10th day of September, 1896, plaintiff’s attorney received the defendants’ answer by mail. Upon the 16th day of September, 1896, plaintiff’s notice of trial was served,, and upon the 21st day of September, 1896, defendants served their notice of trial.

Upon the 30th day of September, 1896, defendants’ attorney-obtained ese parte and served an order requiring the plaintiff to furnish security for costs, or show 'cause upon October 6th.

Plaintiff unsuccessfully opposed the motion in court upon the 6th day of. October, upon the ground of laches, and • from the order entered thereon this appeal is taken.

The right of the defendants to require security for costs is lost or waived by laches. Negligence to promptly require the security at the first opportunity will defeat the', application.

The order must be applied for as soon as the fact of the plaintiff’s nonresidence comes to the knowledge of the defendant.

The neglect of the defendants to apply for security for costs until after the service of the answer and the notice of trial, is a waiver thereof unless the defendants are ignorant of the non-residence of the plaintiff..

If the defendants apply for security for costs after service of the answer and the notice of trial, the burden of proving affirmatively that they did not know of the plaintiff’s nonresidence before is upon the defendants.

This proposition is supported with great unanimity by all the cases reported, and an orderly system of practice requires that the procedure should be uniform and certain.

Here the complaint advised the defendants of the plaintiff’s nonresidence and no explanatioii for the delay on their part' is offered.

Notwithstanding the allegation in the complaint that the plaintiff was a foreign corporation, the respondents obtained two extensions of time to'answer, served their answer, received the plaintiff’s notice of trial, served defendants’ notice of trial, and only procured the order when the case was to be placed on the "calendar for trial.

We think they were guilty of laches in applying for security for costs and waived their right thereto.

The order appealed from should be reversed, with costs to the appellant.

Vah Wyck, Ch. J., concurs.

Order reversed, with costs.  