
    NASSAR v. ELIAS.
    (Supreme Court, Special Term, New York County.
    December, 1908.)
    Costs (§ 112*)—Security for Costs.
    In the First department of the Supreme Court the right to security for costs because of nonresidence of plaintiff, as an absolute one, must be asserted before service of answer.
    [Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 463, 466; Dec. Dig. § 112.*]
    Action by one Nassar against one Elias. On motion by defendant for security for costs. Denied.
    M. M. Greenstein, for the motion.
    Samuel J. Siegel, opposed.
   MacLEAN, J.

In this department it is held that the right, as an absolute one, must be asserted before the service of an answer, and that “a subsequent application is addressed to the discretion of a court, and some «fact must be shown to excuse the delay in making it.” Henderson, Hull & Co. v. McNally, 33 App. Div. 132, 133, 53 N. Y. Supp. 351. In the Second department it is said that application after trial constitutes such laches as requires the court to deny the remedy, unless a new proceeding, as an appeal is instituted (Turell v. Erie R. R., 46 App. Div. 296, 61 N. Y. Supp. 308), which does not appear herein. The defendant shows no fact that will justify the court in excusing his late application, founded, not upon ignorance of fact, but of law.

Motion denied, with $10 costs.  