#### Thomas Dwyer, an Infant, by Thomas W. Dwyer, His Guardian *ad Litem,*Appellant, *v.*Thomas J. McLaughlin, Respondent.

(City Court of New York, General Term,

April, 1899.)

Security for costs — Must be required .of an infant plaintiff before answer.

The absolute right which a defendant has under subdivision 5 of section 3268 of the Code of Civil Procedure of requiring an infant plaintiff to give security for costs, where his guardian *ad litem'*has given none,' is waived unless it is asserted before answer.

Appeal from an order requiring plaintiff to file security for costs.

Philip Carpenter, for appellant.

Ennever & Trautmann, for respondent.

McCarthy, J.

This .appeal is one from an order requiring the plaintiff or his guardian ad *litem*to file security for costs; and the Only question involved is, admitting that the defendant has the right at first to require the plaintiff, or his guardian *ad litem,*to file security for costs, yet where the defendant has been guilty of laches,, in such, requirement, and fails to explain such delay or laches, does the defendant lose such right, and thus waive any claim to require the plaintiff to give such security?

We think the defendant in this case has done so. The defendant claims the right to security for costs under subdivision 5 of *188section 3268 of the Code of Civil Procedure,, because, the plaintiff sues by his guardian *ad litem,*and although the defendant knew the form' or character in which the plaintiff was suing from the time of the service of the summons herein, yet nothing was done by him until after an extension .of time to answer had been granted, and' the service of an. answer was made, and a notice of trial was also duly served. , .

It has been held in a great many cases that, where a party defendant waits until after the answer has been served before -he makes his application for security for costs, the absolute right is lost and it then becomes a matter of appeal to the discretion of the- court, but the court 'will not exercise its discretion unless a sufficient excuse is given for the delay. Buckley v. Gutta Percha & Rubber Mfg. Co., 3 Civ. Pro. 429.

I think one of the strongest cases, in support of this position and exactly like the case at bar is Smith & Briggs Brass Works v. Kahn, 18 Misc. Rep. 597.

The order appealed from was reversed with costs; the Opinion is indeed interesting and to the point. Again, in Henderson, Hull *&*Co. v. McNally, 33 App. Div. 132, after answer and notice of trial, the defendant moved' for security for ■ costs and the application was granted, but this was reversed. Barrett, J„ writing the opinion says: “This-we think'was, under the circumstances, errdneous. The defendants seem to have móVed for security as matter- of right.”

The rule with us is that the defendant’s absolute right to compel a non-resident- plaintiff to give security for costs is waived unless it be asserted before answer.

A subsequent application is addressed to the discretion of the court, and stimé fact must be shown to excuse the delay in making it. Here no fact is shown. *‘ ■*

The defendant might have appealed to the discretion of the court, upon showing some fact excusing' the delay ill moving. Having shown no such fact, but relying solely upon what he conceived to be his absolute right, his application should have been denied. • .

There was nothing presented in the case at bar upon which the discretion of the court could have been exercised.

The order should be -reversed, and a motion for security for costs.is denied, with costs.

Oucott, J., concurs.

Order reversed and motion denied, with costs.