
    Lewis M. Teal, Pl’ff, v. Abraham Yost, Def’t.
    
      (New York Superior Court, Special Term,
    
    
      Filed April 1, 1889.)
    
    Costs—Security for—Order discretionary—Code Ciy. Pro., § 8268.
    The granting or denial of a motion to require security for costs from a non-resident plaintiff is within the discretion of the court.
    Motion by the defendant for security for costs upon the ground that the plaintiff was a non-resident.
    
      Lemuel Skidmore, for def’t:
    The court has no discretion to deny this motion. The defendant has an absolute right to security for costs. Code Civ. Pro., §§ 3268, 3272.
    The defendant has not lost this right by loches, as this motion was made at the time of answering and within twenty days after service of the summons and complaint. The decisions holding that the court has discretion to refuse to order security for costs do not apply to cases where the plaintiff is a non-resident.
    
      Edward Lyman Short and Samuel Blythe Rogers, for pl’ff:
    The granting or denial of this motion is wholly within the discretion of this court. Todd v. Marsily, 26 Week. Dig., 244; S. C., 7 N. Y. State Rep., 872; Churchman v. Merritt, 15 Civ. Pro. R., 245; Woodward v. Stearns, 11 Abb. Pr. [N. S.], 445.
    
      The practice was the same before the adoption of the Code. Robinson v. Sinclair, 1 Denio, 628.
    This motion is made in bad faith and to hinder and delay the plaintiff. The court, in the exercise of ils sound discretion, should therefore deny it. The defendant has admitted upon the trial of action Wo. 1 that he signed the sealed instrument upon which this action is brought. The denial of this fact in the answer is therefore sham, as the remaining questions raised by it are obviously frivolous.
    The defendant’s motive in making this application is also •shown by the fact that shortly after the commencement of action Wo. 1, he transferred his real estate to his son for a nominal consideration; but continued to keep possession of it himself.
    The law looks with disfavor upon the privilege of security for costs, as it may be used to delay or obstruct justice. Shuttleworth v. Dunlop, 25 Alb. L, J., 8; Long v. Majestre, 1 Johns. Ch., 202
    The defendant has, moreover, waived his right to security for costs by answering. Long v. Majestre, 1 Johns. Ch., 202; Duncan v. Stint, 5 B. & Ald.,702; Stevenson v. N. Y., L. E. & W. R. R. Co., 14 Civ. Pro. R., 384.
   O’Gorman, J.

—This is a motion on the part of the defendant, who has answered in the action, for security for costs, under section 3268 of the Code of Civil Procedure.

This is an action on a written agreement executed in Pennsylvania, and, under the laws of that state, entitled to be regarded as an instrument under seal.

Whether it should be so regarded for the purposes of this action, and whether the action is or is not barred by the statute of limitations, will probably be the main issue to be tried.

The granting of the defendant’s motion is within the discretion of the court, and, in this case, the motion should, in my opinion, be denied. Todd v. Marsily, 7 N. Y. State Rep., 872; Churchman v. Merritt, 15 Civ. Pro. R., 245; Stevenson v. N. Y., L. E. & W. R. R. Co., 16 N. Y. State Rep., 787.  