Turrell v. Erie Railroad

We think that this application proceeds upon a misapprehension of our opinion in this and the De Graw 'Case. In saying that the conduct of the defendant in answering and going to trial “constitutes such loches as requires the court to deny to the party the remedy which it seeks” we did not mean that the court was compelled to deny the application as matter of law, but merely that a proper exercise of judicial discretion demanded that it should do so. Section 3268 of the Code of Civil Procedure entitles the defendant in a case like this to security for costs as a matter of right, if the…