CADWELL a. MANNING

CADWELL a. MANNING. Supreme Court, First District; At Chambers, November, 1862. Practice in obtaining Security for Costs. To obtain security for costs, the defendant" should procure an order ex parte, directing security to be filed within twenty days, or, on failure, to show cause on the first motion-day thereafter why security should not be filed, with a stay of proceedings. In case security is not filed, and defendant’s motion is granted, a peremptory order, operating as a stay of proceedings, will be allowed. Then, if security is not filed within a reasonable time, a motion to dismiss the complaint will be granted. Motion to dismiss complaint for failure to file security for costs. This action was brought by George Cadwell against Stille Manning, Samuel F. Fighter, and Jarvis Gwinn, on an indorsement for $1,295.74. Manning and Gwinn obtained an order for the plaintiff, a non-resident, to file security for costs within twenty days, or show cause, on August 7th, 1862, why the complaint should not be dismissed. The plaintiff failed to furnish the security, and the motion to dismiss was brought to a hearing. Frederick G. Burnham, for the motion. Ira D. Warren, opposed. [MAJORITY — Barnard, J.] Barnard, J. Prior to the Code, the established practice to be pursued, when it was desired to obtain security for costs, was either to obtain a chamber order ex pwte, directing security to-be filed within twenty days, and in the event of security not being filed .within twenty days, then requiring cause to be shown at the first special term to be held after the expiration of said twenty days, why security should not be filed, which order contained a stay of proceedings. On the return-day of the order, if the security had not been previously filed, the motion for security was heard, pursuant to the alternative of the order to show cause. If the motion was granted, a peremptory order to file security was made. This order operated as a stay of proceedings. If security was not filed within a reasonable time, pursuant to the peremptory order, a motion was made for judgment of nonpros., or the party desiring security might apply in the first instance to the court, on notice to the opposite party, in which event, if the motion was granted, a peremptory order to file security was made in the first instance. The proceedings in case of not filing security, pursuant to the peremptory order, was then, by a motion, for a nonpros. There' is no enactment, either of the Code or otherwise, changing the practice. In this case the order is a chamber order without notice, and is a peremptory order to file security; and in default thereof, to show cause why the complaint should not be dismissed. This motion cannot be granted without introducing a new course of practice. Motion denied, without prejudice to defendants’ making a further application for security in a different manner.