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Security for costs.
SEO. 3268. When defendant may require security for costa.
3269. Id.; after action commenced.
§ 3268. (Amended, 1891.] When defendant may require security for costs.— The defendant, in an action brought in a court of record, may require security for costs to be given, as prescribed in this title, where the plaintiff was, when the action was commenced, either
1. A person residing without the State ; or, if the action is brought in a county court, or in the city court of the city of New York, the city court of Yonkers, or the justice's court of the city of Albany, residing with. out the city or county, as the case may be, wherein the court is located; or
2. A foreign corporation; or
3. A person imprisoned under execution for a crime ; or
4. The official assignee of a person so imprisoned; the offi. cial assignee or official trustee of a debtor; or an assignee in bankruptcy where the action is brought upon a cause of action, arising before the assignment, the appointment of the trustee, or the adjudication in bankruptcy; or
5. An infant, whose guardian ad litem has not given such security, except as otherwise provided in sectious 459 and 469 of this act. (In effect Sept. 1, 1891, and not applicable to actions or proceedings cominenced prior to such date.
2 R. S. 620, 21 (2 Edm. 644). Coates v. Morris, 1 Law Bull. 29: Hodges v. Porter, 10 Hun, 244; Gelch v. Barnaby, 7 Abb. 19; 1 Bosw. 657; Wice v. Çom. Ins. Co., 7 Daily, 258; McDonald v. Brass Goods Manufact'g Co., 2 Abb. N. C. 434 ; Republic of Mexico v. Arrangoid, 3 Abb. 470; Norton v. Mackie, 8 Hun, 520; Hall v. Waterbury, 1 Law Bull. 22; Florence v. Bulkely, i Duer, 705; Ranney v. Stringer, 4 Bosw. 663; Keller v. Town. send, 2 Abb. N. C. 432; Gardner v. Kelly, 2 Sandf. 633 ; National Ex, Bank v. Silliman, 4 Abb. N. C. 224.
$ 3269. Id.; after action commenced. The defend.
ant, in a like action, may require security for costs to be given, where, after the commencement of the action the plaintiff either
1. Ceases to be a resident of the State ; or, where the action is brought in either of the local courts specified in subdivision first of the last section, ceases to be a resident of the city or county, as the case may be, wherein the court is located ; or
2. Is adjudicated a bankrupt, or discharged from his debts, or exonerated from imprisonment, pursuant to & law of the State, or of the United States; or
3. Is sentenced to the State prison, for a term less than for life.
2 R. S. 620, & 1 (2 Edm. 644). Long v. Hall, 3 Sandf. 729; Morton o. Domestic Telegraph Co.,1 Abb. N. C. 290; Gomez v. Garr, 18 Wend. 577.
$ 3270. The last two sections qualified. In a case specified in either of the last two sections, if there are two or more plaintiffs, the defendant cannot require security for costs to be given, unless he is entitled to require it of all the plaintiffs. Ten Broeck v. Reynolds, 13 How. 462; Hulbert v. Newell, 4 id. 93.
$ 3271. Id. ; in actions by and against executors, etc. - In an action by or against an executor or ad. ministrator, in his representative capacity, or the trustee of an express trust, or a person expressly authorized by statute to sue, or to be sued ; or by an official assignee, the assignee of a receiver, or the committee of a person judicially declared to be incompetent to manage his affairs; the court may, in its discretion, require the plaintiff to give security for costs.
Code of Proc., part of ? 317; L. 1874, ch. 446, 8 5.. Briggs v. Vander burgh, 22 N. Y. 467 ; Bolles v. Duff, 17 Abb. 448; Kimberly v. Goodrich, 22 low, 424: Jenkins v. Stow, 2 Law Bull. 57; Day v. Bach, 1 id. 76; Wilbur y. White, 5 pow. 321 ; More v. Durr, 45 N. Y. Super. Ct. 154 Shepherd v. Burt, 3 Duer, 615; Darby v. Condit, 1 id. 599; Norris o. Breed, 1 Sheldon, 271 ; 12 Abb. N. S. 185.
$ 3272. Order to give security. Where security for costs is required to be given, the court in which the action is pending, or, except in a case specified in the last section, a judge thereof, upon due proof, by affidavit, of the facts, must make an order requiring the plaintiff, within a time specified, either to pay into court, the sum of two hundred and fifty dollars, to be applied to the payment of the costs, if any, awarded
against him, or, at his election, to file with the clerk an undertaking, and to serve a written notice of the payment or of the filing upon the defendant's attorney ; and staying all other proceedings, on the part of the plaintiff, except to review or vacate the order, until the payment or filing, and notice thereof, and also, if an undertaking is given, the allowance of the same.
2 R. S. 620, part of 3 (2 Edm. 644). Unger v. Forty-second St., etc., R. R. Co., 30 How. 443 ; 4 Rob. 682; Butler v. Wood, 10 How. 313; Gard. ner v. Kelly, 2 Sandf. 632; Weil v. Freund, 2 Law Bull. 48; Robinson v. Sinclair, 1 Denio, 628; Boucher . Pia, 14 Abb. 1; Fearn v. Gelpcke, 13 id. 473; Carpenter v. Downing, 6 IIill, 234 ; Florence v. Bulkley, 1 Duer, 705; Swan v. Matthews, 3 id. 613; Gedney r'. Purday, 47 N. Y, 676; Abe bott v. Smith, 8 How, 463; Colt v. Wheeler, 12 Abb. 388; Caldwell v. Manning, 15 id. 271; 24 How. 38: Micklethwaite v. Rhodes, 4 Sandf. Ch. 434; White v. Smith, 16 Abb. 109, n; Mills v.Chapman, 1 low. 102; Van Vleck v. Clark, 38 Barb. 316; 24 How. 190; Price v. Betts, 6 Paige, 44,
§ 3273. Requisites of undertaking. — The unders taking, specified in the last section, must be executed to the defendant by one or more sureties, and must be to the effect that they will pay, upon demand, to the defendant, all costs which may be awarded to him in the action, not exceeding a sum, specified in the undertaking, which must be at least two hundred and fifty dollars.
Id., & 4, amended ; L. 1875, ch. 305. Montague v. Bassett, 18 Abb. Pr. 13; Nelson v. Bostwick, 5 Hill, 37; Higley 2. Robinson, 7 Wend. 482; Forty-second & G'd St. F. R. R. Co. v. Guntser, 36 N. Y. Super. Ct. 567; Tallmadge v. Wallis, 1 IIow. 100; Leftwick v. Clinton, 26 id. 26; Smith v. Norval, 2 C. R. 14.
§ 3274. Notice of exception; id.; of justification.Within ten days after service of the notice of filing the undertaking, the defendant may serve upon the plaintiff's attorney a notice that he excepts to the sureties therein. Within ten days after service of such a notice, the plaintiff must serve, upon the defendant's attorney, a notice of the justification of the same or new sureties before a judge of court, or a county judge, at a specified time and place ; the time to be not less than five nor more than ten days thereafter, and the place to be within the county where the action is triable.
Id., 88 5 and 6, amended. Leftwick v. Clinton, 26 How. 26; Hartford Quarry Co. v. Pendleton, 4 Abb. 460.
$ 3275. Justification of sureties. Allowance of un. dertaking.-Section 580 of this act applies to the justi. fication of the sureties. Where the judge finds the
sureties sufficient, he must annex the written examination, if any, to the undertaking, indorse his allowance thereon, and cause them to be filed with the clerk. Where the defendant fails duly to except to the sure. ties, the undertaking is deemed allowed, and must be indorsed and filed in like manner.
Id., ?? 5 and 6, amended ; L. 1875, ch. 305. Riggins v. Williams, 2 Duer, 678; Lake v. Arnold, 41 How. 332 ; Bronson v. Freeman, 8 id. 492.
$ 3276. [Amended, 1891.] Order to give additional security. Proceedings.- At any time after the allow. ance of an undertaking, given pursuant to such an order, or as prescribed in section 3278 of this act, or after notice of the payment into court made pursuant to such an order, the court, or a judge thereof, upon satisfactory proof, by affidavit, that the sum specified in the undertaking, or the amount of such payment, is insufficient; or that one or more of the sureties bave died, or become insolvent, or that his or their circumstances have become so precarious that there is reason to apprehend that the undertaking is insufficient for the security of the defendant; must make an order requiring the plaintiff to give an additional undertaking, or make an additional pasment into court. The last four sections apply to such an order, and to the undertaking given, or payment made, pursuant thereto. [In effect Sept. 1, 1891.
$ 3277. Effect of failure to obey order to give se curity. - Where the plaintiff fails to comply with an order, made as prescribed in this title, or to procure the allowance of an undertaking given pursuant to such an order, the defendant is entitled to a judgment dismissing the complaint, and in his favor for costs. The de. fendant may apply therefor, as upon a motion.
Ia., 84, amended; L. 1875, ch. 305. Hoy v. Power, 2 Edw. 494; Boyce v. Bates, 8 llow, 495.
§ 3278. Liability of attorney for costs in certain actions. - Where a defendant is entitled to require security for costs, as prescribed in section 3269 of this act, the plaintiff's attorney is liable for the defendant's costs, to an amount not exceeding one hundred dollars, until security is given, as prescribed in this title. The plaintiff's attorney may relieve himself from that liability, although the defendant may not require security for costs to be given, by filing and procuring the allow ance of an undertaking, as if an order had been male As prescribed in section 3272 of this act.
Id., 887 and 8. Boyce v. Bates, 8 liow. 495; Wilmont 2. Meserole, 48 jd. 430; 16 Abb. N. S. 308; Waring v. Barei, 2 Cow. 460; Jones v. Savage, 10 Wend. 621 : Moir v. Brown, 9 low. 270; Long v. Hall, 3 Sandf.
$ 3279. This title applies to special proceedings. The foregoing sections of this title apply to a special proceeding instituted in a court of record, in like manner as to an action ; for which purpose, the prosecuting party, other than the people, or, where the spe. cial proceeding is instituted in the name of the people apon the relation of a private corporation or individual, the relator, is deemed a plaintiff, and the adverse party, a defendant.
Leo. 3280. Taking fees not prescribed by law, prohibited.
3281. ld.; for services not rendered, except, etc.
3295. Comptroller to audit certain charges. $ 3280. Taking fees not prescribed by law, prou hibited. - Each clerk of a court must perform all the duties required of him, in the course and practice of the court, without fee or reward, except as expressly prescribed by law. Each public officer, upon whom a duty is expressly imposed by law, must execute the same without fee or reward, except where a fee or other compensation therefor is expressly allowed by law. officer or other person, to whom a fee or other compensa : tion is allowed by law, for any service, shall not chargi. or receive a greater fee or reward, for that service, thana 18 so allowed.
L. 1840, ch. 386, 16; 2 R. S. 650, 85 (2 Edm. 669).