Requard v. Theiss

This is an appeal from an order dismissing a complaint on failure to file security for costs.

The action was commenced on the 27th day of August, 1896, by the service of a summons and complaint, and on the 2d day of September, 1896, an order was made herein in the usual form requiring the plaintiffs to file security for costs within- ten days, and in default of so doing to show cause in chambers of said court *564on the 14th day of September,' 1896, why such payment should not be made or undertaking given, and why the said defendants should not receive such order or further order or' relief in the premises as to the court may seem meet.

On the return day of the order, the plaintiffs’ attorneys appeared and urged their reasons for not filing, security for costs, which reasons were not deemed sufficient by the court, and an order was thereupon made dismissing the.complaint.

This, we think, was error. The plaintiffs were not in default,, nor had they in any way disobeyed the direction of the court.

The only thing they failed to do was to satisfy the court that they ought not to file security, for costs, and this only subjected them to an order directing them to do so within the timé to be fixed in said order, and upon proof of their failure to do so the court, under Code, section 3277, could dismiss the complaint with costs.

Order appealed from reversed, with costs, but without prejudice to renew at Special Term.

Schuohman and O’Dwyer, JJ., concur.

Order reversed, with costs, but without prejudice to renew.