WOODWARD against STEARNS

WOODWARD against STEARNS. New York Common Pleas; Special Term, March, 1871. Sectjbity eob Costs.—Uhdebtakihg oh AttachMEHT. The statute does not make it imperative on the court to'grant an order that a non-resident plaintiff file security for costs. The bond provided for by the statute should not be required, where plaintiffs have already filed security to pay all costs which may be awarded to defendants, in case they recover judgment. The usual undertaking given by plaintiffs on the issue of an attachment against the property of the defendants, on the ground of their non-residence, is not, however, sufficient to dispense with security for costs. Motion, to require plaintiffs to file security for costs. The facts are stated in the report of the motion to vacate the attachment (10 Abb. Pr. N. S., 395). [MAJORITY — J. F. Daly, J.] J. F. Daly, J. Upon the motion of defendant that plaintiff be required to file security for costs, I am of opinion that it is not imperatively required by the statute, that such order to file security, should be made under all circumstances (Robinson v. Sinclair, 1 Den., 629; Florence v. Bulkley, 1 Duer, 705), and that where security to pay all costs that may be awarded to defendants, in case they recover judgment, is already filed, the bond provided for by statute (2 Rev. Stat., 620), should not be required. The plaintiff has already filed two undertakings to that effect. Both of them, however, were given upon applying for a warrant of attachment, and have been filed in this action. One was for two hundred and fifty dollars, and when presented to the learned judge granting the attachment he required further security. Another undertaking was then presented for one thousand dollars, with which he was satisfied. I am disposed to regard the latter as superseding the former undertaking; if so it is not probable that the defendant could recover upon the former in any event. And I consider the one thousand dollar undertaking as applicable to the costs and damages of defendant under the attachment only, yielding to the views of Chief Justice Dam in that regard. I think, therefore, a bond under the statute should be filed if the plaintiff be a non-resident. This fact is not satisfactorily settled by the affidavit read on the motion. A reference may be had to ascertain the fact if the defendant insists upon it, the costs of the reference to be paid by them if the referee reports, and the court is satisfied • that plaintiff is not a non-resident. An order may be settled on two days’ notice.