Legal Opinion

Dyer v. Dunivan

New York Supreme Court

Decided November 15, 1847PublishedCited by 2 opinions

Motion to vacate an order of the Court of Common Pleas, that the Plaintiff file security for costs, &c. It appeared from the affidavits that the Plaintiff, at the time of the commencement of the suit, was a resident of the county of Otsego, and that he subsequently removed to the county of Broome. That an order was duly obtained, requiring him to file security for costs, or show cause at the ensuing term of the court, to be held on the 3d Monday in June last.

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Motion to vacate an order of the Court of Common Pleas, that the Plaintiff file security for costs, &c. It appeared from the affidavits that the Plaintiff, at the time of the commencement of the suit, was a resident of the county of Otsego, and that he subsequently removed to the county of Broome. That an order was duly obtained, requiring him to file security for costs, or show cause at the ensuing term of the court, to be held on the 3d Monday in June last. That cause was shown, but an order made staying his proceedings until he should file security.

1Opinion of the Court

Morehouse, Justice.

It necessaril*136y change the common law on the same subject, except when repugnant to it, but the duties and rights imposed or conferred, are cumulative. (Oomyn’s Digest, tit. Parliament Rep., 23,24.) The power of staying proceedings till security for costs shall be filed, is incidental, and has been, and may be so exercised. (18 Wend. 652, 1 Denio, 659.) The Court of Common Pleas having the power to require security, independent of the statute, a change in the situation of the parties by a repeal or other modification of the statute, cannot be urged here as a "reason for…

2Cases cited1 opinion

  1. Swift v. CollinsCourt for the Trial of Impeachments and Correction of Errors · 1845

3Cited by2 opinions

  1. Harrigan v. GilchristWisconsin Supreme Court · 1904
  2. Keller v. TownsendNew York Supreme Court · 1877

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