M. Salimoff & Co. v. Vacuum Oil Co.

• Decision Date: 01 June 1932
• Citation: 259 N.Y. 608,182 N.E. 201
• Court: New York Court of Appeals Court of Appeals
• Parties: M. SALIMOFF & CO. et al. v. VACUUM OIL CO.

259 N.Y. 608

182 N.E. 201

M. SALIMOFF & CO. et al.

v.VACUUM OIL CO.

Court of Appeals of New York.

June 1, 1932.

Action by M. Salimoff & Co. and others, nonresidents, against the Vacuum Oil Company. The Appellate Division (235 App. Div. 673, 255 N. Y. S. 880) affirmed an order of the Special Term granting a motion by defendant for an order requiring each of the plaintiffs to pay into court the sum of not less than $250 to be applied to the payment of costs, if any, awarded against any such plaintiff, or to file on behalf of each such plaintiff an undertaking of not less than $250 as security for the payment of costs, and plaintiffs appeal by permission; certain questions being certified.

Order reversed, motion requiring each plaintiff to furnish security for costs denied, and questions answered.

The following questions were certified:

‘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 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?’

Appeal from Supreme Court, Appellate Division, First department.

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

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

PER CURIAM.

Order of Appellate Division and that of Special Term reversed, with costs in all courts, and motion requiring each plaintiff to furnish security for costs denied, with $10 costs of the motion. First question certified answered in the affirmative, and second, third, and fourth questions certified answered in the negative on authority of Salimoff & Co. v. Standard Oil Company of New York, 259 N. Y. 219, 181 N. E. 457.

POUND, C. J., and CRANE, LEHMAN, KELLOGG and O'BRIEN, JJ., concur.

HUBBS and CROUCH, JJ., not sitting.