
    Hinman v. Pierce et al.
    
    
      (Supreme Court, General Term, First Department.
    
    November 23, 1888.)
    Practice in Civil Cases—Dismissal—Reverence to Hear Counter-Claims.
    Plaintiff having failed to give security for costs, defendants moved to dismiss the complaint, and also for a reference of certain counter-claims in their answer. An order was entered reciting both applications, and adjudging that the motion should he granted, with costs, unless plaintiff, within 30 days, should file the security, and pay certain costs, which he failed to do. Held, that the orderdid not bind the court to direct a reference. It stayed plaintiff’s proceedings, so that he could not reply to the counter-claims, and the court therefore properly denied the reference, and dismissed the complaint under Code Civil Proc. § 3377, providing for such dismissal when plaintiff fails to obey an order for security for costs.
    Appeal from special term, Hew York county; Barrett, Justice.
    Action by Alplieus M. Hinman against Robert T. Pierce and Lorin Palmer, doing business in the city of Hew York under the firm name of Robert T. Pierce & Co., for an accounting. The answer alleged certain counter-claims, and moved for an order requiring plaintiff, as a non-resident, to furnish security for costs. Thereafter, at a special term, on the 23d day of March, 1888, before O’Brien, J., the following order was made: “On reading and filing the affidavit and notice of motion on behalf of the defendants to dismiss the complaint, with costs, and allowance for the failure of the plaintiff to file security for costs as heretofore ordered herein, and for the appointment of a referee to take proof of the facts stated in the answer, and on reading the pleadings and the order herein, of date March 2, 1888, on reading and filing the affidavit of H. Aplington, in answer to the motion, and the papers having been submitted without argument, now, on motion of Wales P. Severance, defendants’ attorney, ordered, that said motion be granted, with costs, without the plaintiff, within twenty days from the service of a copy of tills order upon his attorneys, pay ten dollars costs of this motion, and ten dollars costs of the order of March 2, 1888, and serve his reply, and give security for costs as heretofore ordered, in which event this motion be denied, without costs.” April 14, 1888, defendants moved for a short order to show cause wliy an order ex parte should not be entered appointing a referee, and dismissing the complaint absolutely, with costs and allowance. The following opinion was delivered by Barrett, J.: “The defendants may take an order absolute dismissing the complaint, with costs. They cannot, however, take an order which will have the effect of giving them an affirmative judgment upon their counter-claim. If they desire to proceed witli the litigation in the latter respects, they must permit the plaintiff to reply and defend himself against the counter-claims without giving security. That is his right. He can be prevented from moving his own claims, hut he cannot be prevented from defending himself. It would be monstrous to permit a large judgment against the plaintiff merely because he cannot give security for costs.” The following order was entered: “ Ordered tiiat said motion be, and the same is hereby, granted in part as follows: That the complaint be, and the same is hereby, dismissed, witli costs to be taxed, and that said motion for an order of reference to take proof as to the facts stated in the defendant’s counter-claim be, and the same is hereby, denied, and that defendant take nothing in this action by his counter-claim, defendant’s counsel stating in open court tiiat he declines to waive his right to security for costs, and allow plaintiff to reply without such security having been first given.” Defendants appeal from so much of the order as denies the reference.
    Before Van Brunt, P. J., and Daniels and Bartlett, JJ.
    
      Wales F. Severance, for appellants. H. Aplington, for respondent.
   Daniels, J.

An order was obtained on the application of the defendants, requiring the plaintiff to file security for costs. He failed to do that, and the motion was thereupon made on behalf of the defendants to dismiss his complaint. On the decision of that motion an order was entered reciting an application for a reference in addition to the dismissal of the complaint, and for the appointment of a referee to take proof of the facts stated in the answer. It was then ordered that the motion should be granted, with costs, unless the plaintiff, within 20 days, filed the security, and paid the costs of this and another motion. The plaintiff failed to file the security, and the defendants, upon that failure, and proof of service of the order, applied for a reference to take proof of the counter-claims. The court denied that application, and it is from that denial that the appeal has been brought. To support it the position is taken that the first order was binding and conclusive upon the court at the time when the final application was made, and left it without discretion upon the subject of the appointment of the referee. But it is very clear from the first order that it is not entitled to that effect; for if it had been the intention of the court at the time when that order was made to provide for this reference it would then have been so directed in the order, leaving no ground for mistake upon the subject. It was not so directed, but the right of the defendants to such a reference was left open and wholly unaffected, and the question was accordingly presented upon the last hearing whether the court should make an order for a reference to take proof of the alleged counter-claims. Such a direction would be very unjust; for the defendants had previously obtained an order staying all the plaintiff’s proceedings, and that prevented him from replying to these alleged counter-claims. And after obtaining and serving that order no court with any sense of propriety would allow the defendants to go on and prove alleged counter-claims, when by their own act it had been placed out of the power, as the stay did, -of the plaintiff to reply to these defenses. The more reasonable view to be adopted and followed would be, if the defendants insisted upon taking proof of and recovering their counter-claims, that by these acts the stay would be vacated, certainly so far as to permit the plaintiff to reply, and to litigate the right of the defendants to recover upon the issue framed in that manner. But to permit the defendants to put it out of the power of the plaintiff to • reply, or litigate the counter-claims, and then to recover the amounts alleged to be owing, if anything was owing upon them, would be arbitrary, and unjust in the extreme. The Code, by section 3277, has provided for the dismissal of the plaintiff’s complaint where he may be in default for not complying with an order directing security for costs to be filed. But it has not provided, where such a dismissal may take place in an action of this description, for any relief to the defendants beyond the recovery of their costs. And it could not consistently be made broader, for the dismissal of the complaint, as a matter of necessity, would result in a dismissal of the action of which it is the foundation/ This.is the theory of the section itself; for all which it has provided may be done in the recovery of a judgment dismissing the complaint, and for costs in favor of the defendants. No further relief in this class of cases has been authorized or sanctioned by any provision contained in the Code, and the order should be affirmed, with $10 costs, and also the disbursements.

Van Brunt, P. J., and Bartlett, J., concur.  