
    N. Y. COMMON PLEAS.
    Edwin R. Lake agt. Arnold & Morse.
    
      Special Term at Chambers,
    
    
      September, 1872.
    
      Mach surety on a bond given by a non-resident plaintiff on commencement of an action must justify, if excepted to. The justification of one surety only is in sufficient.
    
      Before Daly, Ch. J.
    
    The action was commenced on a bond given under .the statute for a non-resident as security for costs in the case of Sheldon agt. Lake, in pursuance of an order made on motion.
    The defendants, as sureties, signed the bond ; one justified by affidavit on being excepted to, and the other declined to justify. The bond was duly filed, but was not approved of.
    As one of the defendants did not justify, an order was entered dismissing the action, “the plaintiff, a non-resident,not having filed security for costs.”
    The defendant in that action now commences this action against the sureties, and the answer sets up the failure to file security for costs by the non-justification of one of the sureties on the bond, and the dismissal of the action for want of security as a defense.
    The plaintiff now moves to strike out the defendants’ answer as frivojous, and for judgment.
    M. M. Budlong for the motion.
    T. C. Cronin opposed,
    
    cited Ward agt. Symes and others, 4 Corns., 171.
   • Chas. P. Daly, Ch. J.,

.denied the motion, holding that the answer put in issue a material allegation as to the execution of the bond, and that within the above authority each surety must justify, and the bond be approved of; and the allegation in the answer, if true, constituted a defense; and that the practice required that the question of law be raised by demurrer, if the plaintiffs wished to proceed in the action.  