Renwick v. New Central Coal Co.

The plaintiff was a nonresident and began this action without security for costs. After the commencement of the action, the appellant, Atwater, was substituted as the plaintiff’s attorney in the place and stead of the person who was plaintiff’s attorney at the time the action was commenced. The complaint was dismissed at the trial and a judgment for costs was entered a-gainst the plaintiff. This judgment was for more than $100. Execution against the property of the plaintiff was issued thereon and was returned unsatisfied. The defendant then made his motion to compel Mr. Atwater to pay $100 on account of such costs. The motion was granted and Mr. Atwater appealed from the order granting the motion.

It was claimed by the appellant at the argument before the general term, as had been claimed by him at special term, that he should not be compelled to pay said sum of $100, because the action had been commenced in this state by the non-resident plaintiff at the request of the defendant, and that for that reason the defendant was estopped from invoking the aid of § 3278 of the Code of Civil Procedure.

This statement of facts was denied, and the question was, we think, rightly decided at special term.

We are also of the opinion that the fact that the appellant was not the attorney for plaintiff at the time the action was commenced, does not affect his liability for costs under § 3278 of the Code. The liability of an attorney for costs against a non-resident plaintiff is a con-*446tinning one. It begins at the time the action is begun and continues until security for costs is given, and if no such security is given, it runs as well against the person who is attorney for plaintiff at the time the judgment is obtained, as against the person who was such attorney when the action was commenced.

The only way that an attorney for a non-resident plaintiff can relieve himself of such liability is by seeing to it that the plaintiff gives the security required by § 3278.

The order appealed from is affirmed without costs.

Sedgwick, Ch. J., concurred.