
    Abell et al. v. Bradner et al.
    
    
      (Supreme Court, Special Term, Livingston County.
    
    May 10, 1888.)
    1. Costs—Security fob—When Requibbd—Laches.
    An application that plaintifis be required to give security for costs was made in April, 1888. It appeared that defendants knew at least as early as September, 1887, that plaintifis had become non-residents after the action was brought. The cause was referred in November, 18S7, and was several times before the referee before the application was made. Held, that defendants were guilty of such laches as would deprive them of, their right to require security for costs, though Code Civil Proc. N. x. § 3269, provides that, where plaintiff ceases to be a resident of the state after action brought, security for costs maybe required, and section 3272, that where security may be required, the court, on proof of the facts, shall make an order therefor.
    
      % Same—Judgment against Defendant.
    The interlocutory-judgment, granting costs to plaintiffs, defeats defendants’ right to require of plaintiffs security for costs.
    On motion to compel plaintiffs to give security for costs.
    It appears by the affidavits on which the motion is based that the action was commenced in May, 1886, tried the following December, and decided soon after. From an interlocutory judgment entered January 6, 1887, one of the defendants appealed to the general term, where the judgment, modified in form, was affirmed, and a further interlocutory judgment was entered November 11,1887, by which the cause was referred to John B. Strang to take certain accounts. Several hearings have been had before the referee, and the matter is still pending. The moving papers bear date April 19,1888. In the spring of 1887, the plaintiffs, who were residents of New York when the action was ■commenced, removed to Minnesota. The opposing affidavit shows that the interlocutory judgment decreed that plaintiff recover costs, and the judgment of affirmance was with costs to plaintiffs, and alleges that no hearings have been had before the referee, without objection by defendants, since they had knowledge of plaintiffs’ non-residence.
    
      E. Harris, for pláintiffs. J. A. Vanderlip, for defendants.
   Angle, J.

Section 3269, Code Civil Proc., provides that the defendant may require security for costs to be given where, after the commencement of the action, the plaintiff ceases to be a resident of the state; and section 3272 provides that where security for costs is required to be given, the court in which the action is pending, or a judge thereof, upon due proof by affidavit of the facts, must make an order requiring the plaintiff to give such security. It is ■abundantly settled that in the cases mentioned in section 3269 the defendant may require security for costs as a matter of absolute right, and that the court has no discretion, but must under section 3272 make the order for security. But, wherever the application therefor has been unusually delayed, the granting of it rests in the sound discretion of the court, and the defendants’ right to require security may be lost by laches, and his neglect promptly to avail himself of such benefit. 4 Civil Proc. B. 82, note, and cases cited. Since the authorities in that note collected, the following, pertinent to the question of delay and waiver, have followed in the same direction: In Fitzsimmons v. Curley, 6 Civil Proc. B. 156, where it was claimed that the plaintiff had become a non-resident since the commencement of the action, the •court said: “We are also of opinion that the defendant, by proceeding with the trial before Judge Freedman, waived his right to the security. So far as appears, he knew all about the facts he has stated in his affidavit prior to •commencing the trial, and, knowing all those facts, he proceeded with the trial, and did not make this application until Judge Freedman had suspended the trial, and ordered certain issues to be tried by a jury. It was then too late. ” In the present case, the defendant, by not disclosing when he acquired the knowledge that plaintiffs had become non-residents, no presumption is to be indulged in his favor as to when he obtained the knowledge. They were .all non-residents as early as September, 1887, and since then, and before making this application, the interlocutory judgment on the decision of the general term has been entered, and the hearing before the referee has been entered upon. In McDonald v. Peet, 7 Civil Proc. B. 200, the action was commenced July 31,1883, by a plaintiff, who was known to the defendants to be a nonresident, but they did not move for security until February 15, 1884; and it was held that although the right to security was absolute, not resting in the-discretion of the court, yet that it was lost by the laches which operated as a waiver. That case differs from the present, in that it appeared that defendants knew of the non-residence of the plaintiff when the action was commenced. I am led to the conclusion that the delay of defendant must defeat this motion. - 0

Another point is made against this motion, viz., that the interlocutory judgment against the defendants must defeat it. This would certainly have been so under the Revised Statutes. Butler v. Wood, 10 How. Pr. 313; Flint v. Van Deusen, 24 Hun, 440. In a case arising under section 3276, where the language is as imperative on the court to grant the order as it is in section 3272r it was held that a judgment against the defendant should defeat his motion. Brackett v. Griswold, 12 N. Y St. Rep. 402; citing Flint v. Van Deusen, supra. And I am inclined to the opinion that this point is good in the present ease. Motion denied, with $10 cost.  