#### Samuel Thompson Banes, Appellant, *v.*Roy A. Rainey, as Executor, etc., of William T. Rainey, Deceased, Respondent.

First Department,

March 6, 1908.

Practice — security for costs by non-resident plaintiff—dismissal of complaint — additional security.

The right to require a non-resident plaintiff to give additional security for costs is purely a creation of the statute, and the right thereto must be found in section 3276 of the Code of Civil Procedure, which is the only statute applicable.

When pending a motion to compel a non-resident plaintiff to give security for costs, but before the making of an order to that effect, the plaintiff gives such security, which is retained by the defendant without abandoning the motion, the security should be considered as given in pursuance to the order thereafter entered.

Where, after the giving of security, judgment dismissing the complaint is , entered, with costs, the defendant is not entitled to additional security, for in effect it would be security for the payment of the judgment which is not authorized by statute.

. Appeal by the plaintiff, Samuel Thompson Banes, from an order of the Supreme Court, made at the blew York Special Term and entered in the office of the clerk of the county of New York on the’ 6th day of February, 1908, directing the plaintiff to give additional security for costs.

*Charles E.*Kelley, for the appellant.

*Bartow S. Weeks,*for the respondent.

McLaughlin, J.:

This appeal is from an order directing the plaintiff, a nonresident, to give additional security for costs by filing and proQuring the allowance of an additional undertaking with sufficient sureties in the sum of $2,250, or by making an additional payment into court in that sum. Before answering the defendant made a motion to compel the plaintiff to give security for costs. The motion was not opposed, and on the day it was returnable, and before any order had been made requiring plaintiff to give such security, he filed an undertaking, in the sum . of $250, and a few days later served a copy on a defendant’s attorney, who retained it. The *584motion resulted in an order requiring the plaintiff to give security in the sum of $250, which was entered after the undertaking had been given. Subsequently proceedings were had in the action which resulted in a dismissal of the complaint and- judgment against the plaintiff for $2,371 costs. The, plaintiff appealed from the judgment, which is .still pending. After the appeal had been taken, the defendant made a motion that the plaintiff give additional security for costs, which motion resulted in the order appealed from.

The right to require a noñ-residént plaintiff to give additional security- for costs is purely a creation of the statute, and unless authority can there be found' it does '.not' exist. *(Republic of Honduras*v. *Soto,*112 N. Y. 310.) The only statute, so far as I am aware, which gives a defendant the right to require, from a nonresident plaintiff, additional security for costs is section 3276 of the Code of Civil Procedure. That section provides -.that' at any time after the allowance of an undertaking given pursuant to an order of the court, or.after notice of the 'payment into court, made pursuant to such an order,- 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 have 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 deféndant,'tlie court or a judge thereof must make an order requiring plaintiff to give an additional undertaking or make an additional, payment into court. Here the original undertaking was given .before any order had been made, but I am inclined to think, inasmuch as the defendant did not abandon the motion, that the question' should be considered as" though the undertaking had been given in pursuance of the order which was thereafter entered. It can hardly be that the plaintiff could deprive the defendant of the benefit Of additional security, if otherwise entitled thereto, by giving an undertaking intermediate-the making of the motion and the entry of an order. Treating the undertaking as One having been given pursuant to an order, and as having been allowed before the motion which resulted in the order here appealed from was made, ! do not think the defendant was ■ entitled to the additional security. Where security is directed to *585be given under section 3276 of the Code of Civil Procedure, a plaintiff may neglect or refuse to comply with the order, and if he does so, the only penalty to which he is subjected is that provided in section 3277, which is a dismissal of the complaint, with costs. This would seem to indicate, at least, a legislative intent that security could not be required after the complaint had been dismissed. Here, before the motion was made which resulted in the order appealed from, the complaint • had been dismissed and judgment entered in favor of the defendant and against the plaintiff for the costs. To require security at this stage of the action is, in effect, to require security for the payment of the judgment, which the statute does not authorize. This was the view entertained by this court in *Schroeder*v. *Page*(124 App. Div. 253), which is decisive of this appeal.

As I read the opinion in *Dunk*v. *Dunk*(177 N. Y. 264) this was also' the view of the majority of the judges of the Court of Appeals. Judge O’Brien, 'who delivered the opinion of the majority of the court, said: “In this case there is no occasion for' straining or supplying words in order to execute what is called the spirit of the statute. The plaintiff may neglect or refuse to comply with an order of the court requiring him to give security for costs, and the only penalty that he is subjected to in such a case is the liability to have his complaint dismissed. It will be seen that,in this case, long before any application was made, for this order, the case had been' decided and judgment entered against the plaintiff ; so that his couiplaint is already virtuálly dismissed. * ■* * The provisions in regard to security for costs were not, I think, ever intended to apply to such a case.”

It is true our decision is in conflict with *Bender*v. *Paulus*(109 App. Div. 148). The decision in that case seems to have been based largely upon the proposition that “ A court of original jurisdiction possesses the discretionary power to require a non-resident plaintiff to give security for costs already accrued or entered on the judgment appealed from, as well as those which shall thereafter accrue.” To support this proposition the learned justice who wrote the opinion cited two authorities *(Gedney*v. Purdy, 47 N. Y. 676, and *Wood*v. Blodgett, 49 Hun, 64). *Wood*v. *Blodgett (supra)*seems to have been based upon the decision in. *586
      *Gedney*v. *Purdy (supra).*The opinion in the *Wood-*case erroneously states what was held in the *Ged/ney*case. That case did not hold “ That a court of original jurisdiction may, in its discretion, require a non-resident plaintiff to give security for costs already accrued or entered on-the judgment appealed from, as well as those which should thereafter accrue.” The plaintiff in *Gedney*v. *Purdy*(supra) .who was required to give additional security for costs was not.a non-resident, but an administrator and was required to give security for costs under section 317 of the Code of Procedure,* which read substantially the same as section 3271 of the Code of Civil Procedure now reads. . What was held was that a “ court of original jurisdiction may in-its discretion require the plaintiff in an action, suing as an executor, administrator, or trustee of an express trust, to give security for costs under section 317 of .the Code at any time during the pendency of the action,- either before trial and judgment or pending an appeal to. the Genéral Term of the court from a judgment.” There, the order directing additional security was authorized by the section of the. Code of .Procedure in pursuance of which the decision was made." Here, it is sought to justify the order under section 3276 of the Code of Civil Procedure and I am unable to find there any. authority which authorizes an order requiring additional security after the complaint has .been dismissed.

' For ■ this, reason, therefore, the order appealed from must be reversed, with ten dollars costs and disbursements, aiid the motion denied, with ten dollars costs.

Patterson; P. J., Clarke and Scott, JJ., concurred. ,

Amd. by Laws of 1852, cbap. 892.— [Rep.

Ingraham, J. (concurring):

I concur. This question has been decided in *Schroeder*v. *Page*(124 App. Div. 253) and this áppeal is controlled by that decision; ' otherwise I should be inclined to agree with *Bender*v. *Paulus*(109 App. Div. 148).

Order, reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.