
    HAULENBECK a. GILLIES.
    
      New York Common Pleas;
    
    
      General Term,, December, 1858.
    . District Court Summons.—Non-resident Plaintiff.—Dismissal of Appeal.
    Under the act of 1857, respecting practice in the district courts in the city of New York (1 Laws of 185Í, 107), a non-resident plaintiff must give security for costs when he proceeds by long summons, as well as when he proceeds by short summons. (Brady, J., dissented.)
    The plaintiff’s appeal from a judgment dismissing his complaint in such an action, will be dismissed if it does not appear by the return that any costs were awarded against him.
    Motion to dismiss an appeal from a judgment of a district court dismissing a complaint.
    The facts are stated in the opinion of the court.
   By the Court.—Hilton, J.

—The plaintiff, a resident of New Jersey, sued the defendants in the Sixth District Court, by long summons, and without giving security.

The defendants appeared, and these facts being admitted, instead of answering, moved to dismiss the case,” because no security had been filed.

The justice in his return states that he granted the motion, and from his ruling the plaintiff appealed.

Upon the argument we are asked to dismiss the appeal upon the ground that such a decision, by which no costs were awarded, is not appealable.

Under the law as it existed prior to the act relative to the district courts in this city, passed April 13, 1857 (see Laws of 1857, vol. 1, p. 707), a non-resident plaintiff might at his option sue either by long or short summons, the only difference being, that in the latter case he was required to furnish proof of his non-residence, and give security. (Nichols a. Tracy, 1 Sandf. S. C., 278; King a. Dowdell, 2 Ib., 131; Allen a. Stone, 9 Barb. S. C., 61; Kelly a. Kelly, 2 E. D. Smith, 250.)

But by the act of 1857, the practice in this respect was changed, as will be seen by an examination of its provisions.

By section 13, when the plaintiff is not a resident of the county, and gives the security for costs required by section 23, the summons must be returnable in not less than two, nor more than four, days from its date. In other words, it must be a short summons.

Section 23 requires the security in such cases to be given before the summons is issued.

Section 45 specifies the cases where the justice must render judgment dismissing the action with costs, and without prejudice to a new action. And among the cases there enumerated, .are those where it is objected at the trial, and appears by the evidence, that the action is brought by a plaintiff not a resident in the county, without giving the security required by section 23 of the act. If, however, the objection is not taken at the trial, it is waived, and the court will be deemed to have jurisdiction.

In this case the return shows that the fact of the plaintiff’s non-residence duly appeared, and the objection having been taken by the defendants that the action had been brought without giving the security required by the act, the justice very properly dismissed the action.

But as the return fails to show that any costs have been adjusted against the plaintiff, the determination of the justice appears to be incomplete, and as was said by the late Supreme Court in a.somewhat similar case (Monell. a. Weller, 2 Johns., 8), is therefore incapable of reversal or affirmance.

For this reason the motion to dismiss the appeal must be granted.

Appeal dismissed, without costs.

Brady, J. (dissenting).

—Section 13 of the act relating to the district courts of this city, passed April 13,1857, provides that where the defendant is not a resident of the city, or where the plaintiff is not a resident, and gives the security required by section 23 of that act, the summons must be returnable in not less than two, nor more than four, days from its date, and must be served at least two days before the time for appearance mentioned therein. And further, that in all other eases it must be returnable not more than twelve days from its date, and must be served at least six days before the time of appearance. Section 23 referred to, provides that plaintiffs not residing in the city and county of FTew York shall, before the issuing of the short summons, as provided in section 13, file with the clerk of the court a written undertaking, &c. Prior to the act of 1857, a short summons issued from a district court, in favor of a nonresident plaintiff, upon his giving proof of the fact of non-residence, and tendering to the justice the security required by law. (Act to abolish Imprisonment for Debt, &c., Laws q/'1831, p. 396, § 32.) And in respect to this proceeding, section 32 of the act of 1831, and section 13 of the act of 1857, are substantially the same. Under the former it has been held that the plaintiff might proceed by long or short summons at his option, but if he choose the latter mode, he must give security. It was a privilege, not a restriction. (Nichols a. Tracy, 1 Sandf, 278; King a. Dowdell, 2 Ib., 131; Kelly a. Kelly, 2 E. D. Smith, 250.) Section 13 of the act of 1857 imposes no restriction, but grants a privilege upon compliance with a condition,— namely, giving security, in which ■ case the summons may be short. The language of the section is: “ Where the plaintiff is a resident, and gives the security required by section 23but where he does not give the security, it seems to me to be clear that he is then controlled by the second subdivision, which provides that in all other cases the summons must be returnable not more than twelve days, &c. There are no words of prohibition against proceeding by long summons. That is the general mode, while the proceeding by short summons is a speciality allowable when security is given. For these reasons I think the justice erred in dismissing the complaint. It is said that section 45 of the act of 1857 renders it the duty ¿f the justice to dismiss the action in all cases, if it appears that the plaintiff is a non-resident, and has not filed the security contemplated by section 23. I submit with great respect that such a construction is not warranted by the language of the section referred to. It provides that the justice shall dismiss the action when it is objected that the plaintiff is a non-resident of the county, and has brought the action without giving the security required by the act. I think I have shown that security is only required when the proceeding is by short summons. Indeed, the language of section 23 so distinctly provides, as I understand it, in connection with section 13. It is as follows: “Plaintiffs not residing in the city and county of Hew York' shall, before the issuing of the short summons, as provided in subdivision one of section 13 of this act, file with the clerk of the court, a written undertaking,” &c. There is nothing, therefore, in section 45 which affects adversely the conclusion at which I have arrived, because it appears that the justice has no power to dismiss the complaint, except in cases where a non-resident plaintiff proceeds by short summons without giving security.

The dismissal of the complaint was not upon failure of proof, or upon the ground that the facts alleged by the plaintiff were not sufficient to constitute a cause of action. The case differs, therefore, from Monell a. Weller (2 Johns., 8). The justice dismissed the action upon the ground that he had no jurisdiction, and his decision is reviewable in this court for that reason. I think the justice had jurisdiction, that he erred in dismissing the complaint, and that the judgment should be reversed. 
      
       Present, Daly, P. J., and Brady and Hilton, 33.
      
     