M. Salimoff & Co. v. Standard Oil Co. of New York

• Citation: 181 N.E. 457,259 N.Y. 219
• Court: New York Court of Appeals
• Decision Date: 01 June 1932
• Parties: M. SALIMOFF & CO. et al. v. STANDARD OIL CO. OF NEW YORK.

259 N.Y. 219

181 N.E. 457

M. SALIMOFF & CO. et al.

v.STANDARD OIL CO. OF NEW YORK.

Court of Appeals of New York.

June 1, 1932.

Action by M. Salimoff & Co., and others against the Standard Oil Company of New York. An order of the Special Term granting defendant's motion requiring each plaintiff to furnish security for costs, and for a stay, was affirmed by the Appellate Division (255 N. Y. S. 880, 235 App. Div. 673), and plaintiffs appeal by permission of the Appellate Division, which certified questions.

Questions answered, and order reversed, and motions requiring each plaintiff to furnish security for costs denied.

Appeal from Supreme Court, Appellate Division, First department.

J. Alvin Van Bergh and Eugene Eisenmann, both of New York City, for appellants.

William Dean Embree and A. Donald MacKinnon, both of New York City, for respondent.

CRANE, J.

This is an application for security for costs in an action where there are eighteen nonresident plaintiffs. The courts below have required eighteen bonds to be given and have stayed the action until all were furnished. Akely v. Kinnicutt, 208 App. Div. 491, 203 N. Y. S. 745, is the authority for this ruling, although the court below was not unanimous. The Appellate Division granted leave to appeal, certifying the following questions:

‘1. Is it sufficient for the plaintiffs herein to give one undertaking in the sum of $250 or to deposit $250 to secure costs which may be awarded against any or all of the plaintiffs herein?

‘2. Is it necessary for each of the plaintiffs herein to give separate undertakings in the sum of $250 or for each to deposit $250, to secure costs which may be awarded against each of the plaintiffs individually herein?

‘3. Does the Civil Practice Act require the court to stay all of the plaintiffs herein, unless each of the plaintiffs give separate undertakings takings in the sum of $250 or unless each plaintiff deposit the sum of $250 to secure costs which may be awarded against each of the plaintiffs individually herein?

‘4. Should the order herein have been granted?’

We answer the first question in the affirmative, and the second, third, and fourth questions in the negative.

Section 1522 of the Civil Practice Act (subdivision 8) provides that, if there are two or more plaintiffs, the defendant cannot require security for costs to be given unless he is entitled to require it of all the plaintiffs. In this case, therefore, if one of the plaintiffs had resided within the state of New York and the seventeen others were nonresidents, the defendant could not have required security for costs. The inconvenience and difficulty, therefore, of preparing a case against nonresidents, which is one of the arguments used by the defendant for the reasonableness of requiring security from each plaintiff, cannot be considered, as the statute refuses the defendant security for costs where only one plaintiff resides in the state, and there are any number of other nonresident plaintiffs. We must take these statutes as we find them, especially when dealing with the subject of costs, which is entirely statutory. This provision of section 1522 has not been affected by the amendment of section 209 of the Civil Practice Act, for the simple reason that the Legislature has made no amendments to the cost provisions in reference to this matter.

Article 85 of the Civil Practice Act (section 1470 et seq.) provides for the allowance of costs to the plaintiff or to the defendant in the cases specified in the sections. Section 1470 specifies when the plaintiff is entitled to costs of course, section 1475 when the defendant is to have costs, and sections [259 N.Y. 222]1476 and 1477 state when costs shall be discretionary. See, also, section 1483 regarding costs when the recovery is by both the plaintiff and the defendant on separate issues.

There is no provision that I can find in the Civil Practice Act which would permit these eighteen plaintiffs, if they win, to have eighteen bills of costs against the defendant, or, if the defendant should win, would give it eighteen bills of costs against the plaintiffs. Prior to section 209, only a single bill of costs was assessed against unsuccessful coplaintiffs, whether their causes of action were joint or several. Hinman v. Booth, 20 Wend. 666;Carpenter v. Nixon, 5 Hill. 260;Knowlton v. Pierce, 41 How. Prac. 361.

The defendant and the courts below have approached this action as if there...