
    Wood v. Blodgett et al.
    
    
      (Supreme Court, General Term, Fifth, Department.
    
    June 1888.)
    1. Costs—Security por—When Required.
    The language of Code Civil Proc. N. "ST. § 3273, which provides that, “where security for costs is required to he given, the court in which the action is pending, * * * upon due proof, hy affidavit, of the facts, must make an order requiring the plaintiff, within a time specified, ” to give security for costs, is mandatory; and upon appeal after judgment the court should require plaintiff to give security for costs, on an ex parte application of defendant, upon due proof of the facts entitling defendant to the same.
    2. Same—Security por Accrued Costs—Notice op Motion.
    The court, in its discretion, after judgment and before appeal, may require security for the payment of costs already accrued; but such order must be upon notice to the plaintiff, and not upon an ex parte application of defendant.
    Appeal from special term, Monroe county.
    An appeal by the plaintiff from an order of the Monroe special term, denying his motion to vacate an ex parte chamber order granted by a justice of this court requiring the plaintiff, who became a non-resident of the state after the commencement of the action, to file security for costs, as required by Code Civil Proc. N. Y. §§ 3268, 3272, which provide, respectively, that, in certain actions brought in courts of record, defendant may require plaintiff to give security for costs, and that, “where security for costs is required to be given, the court in which the action is pending, * * * upon due proof, by affidavit, of the facts, must make an order requiring the plaintiff, within a time specified,” to give security for costs. At the time the first order was granted judgment had been entered in the defendant’s favor on the report of the referee, dismissing the plaintiff’s complaint, with costs taxed at the sum of $196.84, and from which the plaintiff has taken an appeal.
    Argued before Barker, P. J., and Haight, Bradley, and Dwight, JJ.
    
      J. D. Decker, for appellant. Shuart & Sutherland, for respondents.
   Barker, P. J.

The defendant, in an action where the plaintiff is a non resident of the state, may require him to give security for costs, as provided in section 3268 of the Code of Civil Procedure. The amount and form of the security is determined by the provisions of section 3272, and the order requiring the security to be given may be granted by the court in which the action is pending, or by a judge thereof, on an ex parte application of the defendant, upon.due proof being made of the necessary facts entitling the defendant to the same. The language employed in section 3272 is mandatory, and admits of no other construction. Robertson v. Barnum, 29 Hun, 657; McDonald v. Peet, 7 Civ. Proc. R. 200. That the plaintiff is not entitled to notice when the application is founded upon the provisions of section 3272 is the construction which has been placed upon this section by the special terms and judges at chamber in this department, in which we concur as the correct interpretation. The statute in this respect has changed the general rule of the court requiring all notices brought before the court to be on notice, or an order to show cause, which is but another form of notice. When the application is based upon the provisions of section 3271, notice of motion is required, and the application must be made to the court; and all cases founded on the provisions of that section are expressly excepted from the rule of practice as established by the legislature in section 3272, as was held by this court in Swift v. Wheeler, 27 Wkly. Dig. 512. See, also, Ryan v. Potter, 4 Civ. Proc. R. 80. Each of these sections applies to a different class of cases, and should be construed separately and independently. The plaintiff also contends that the defendant has waived his right to demand security for costs by proceeding to the trial of the action without previously demanding the same. The right of the defendant to demand security for costs of a non-resident plaintiff is an absolute one, not resting in the discretion of the court. Robertson v. Barnum, 29 Hun, 657; Buckley v. Rubber Co., 3 Civ. Proc. R. 429; Ryan v. Potter, 4 Civ. Proc. R. 80, and note thereto; McDonald v. Peet, 7 Civ. Proc. R. 200. The defendant may waive his right by loches in not moving with promptness, and for that reason the court may, in a proper case, deny the application; but, if the delay is excused, the court has the power, at any time before final judgment, to require the plaintiff to file the security required by the statute as a condition to the further prosecution of the action. An appeal is the commencement of a new proceeding in the action after its determination by the rendition of a final judgment, and is distinct from that which resulted in its recovery. In Gifford v. Rising, 48 Hun, 128, (decided by this court in March, 1888,) it was held that the defendant had the right to demand security for costs on appeal by the plaintiff, after judgment in his favor, although he had omitted to make any previous demand for the filing of security.

In the order appealed from the plaintiff was required to give security for the costs which had already accrued, and those that might be avvarded against him on appeal; and we think, under the statute, the court, in its discretion, had the power to require security for the payment of the costs which had already accrued, as well as those that might be thereafter awarded against the plaintiff. It was held in Gedney v. Purdy, 47 N. Y. 676, that a court of original jurisdiction may, in its discretion, require a non-resident plaintiff to give security for costs already accrued or entered on the judgment appealed from, as well as those which should thereafter accrue, or limit the security to the costs that should accrue in the future. The'defendant might be willing to take the risk of collecting the costs from a non-resident plaintiff without security up to and including the trial, but not as to future costs which might be awarded against him on appeal. In this stage of the proceedings the court may require security for the costs which have already accrued, as well as those which may thereafter accrue; but as so much of the order as required security for costs before final judgment rested in the discretion of the court, under the circumstances of the case, we think the plaintiff was entitled to notice, and that it was irregular to grant the order in that respect upon an ex parte application. The order appealed from is reversed, and the original order modified, so as to require security for costs after judgment only, without costs of this appeal to either party. All concur.  