Opinion
February, 1905.
Altkrug Kahn, for appellant.
Steuer Hoffman (Henry A. Freidman, of counsel), for respondent.
The defendant obtained an order requiring the plaintiff to give security for costs on the ground of the latter's nonresidence. Upon a motion made by the defendant upon the papers on which the order was granted the court below entered an order vacating it. From the latter order this appeal has been taken.
The allegations in regard to non-residence are as follows: "The plaintiff, at the commencement of this action was and still is a resident of the Borough of Brooklyn, City of New York, and resides at Number 720 President Street, Borough of Brooklyn, City of New York, with his family. The plaintiff has no office for the regular transaction of business in person within the limits of the Borough of Manhattan, City of New York and prior to the commencement of this action and since the commencement of this action, has had no such office."
Both parties, in their briefs, assume that this appeal presents the question whether section 3268 of the Code, as amended by chapter 524 of the Laws of 1904, notwithstanding the definition contained in section 1345 of the present charter, being chapter 466 of the Laws of 1901, means by the word "city" as used in said section 3268 the entire city, as now constituted of the five boroughs, or the original city as it existed prior to the last consolidation.
Anything we might say on this point would be merely dictum, because of the omission in the moving papers, to allege that the plaintiff has no office for the transaction of business, either in the borough of The Bronx or in the borough of Manhattan. The allegation that the plaintiff has no office is just as much an affirmative part of his case in such an application as this, as the allegation that he has no domicile in this city. Stephenson v. Hanson, 4 Civ. Pro. 104; Wyckoff v. Devlin, 8 id. 138; Code Civ. Pro., § 3160.
The appellant must be defeated, therefore, even under his own contention that the "city" referred to in section 3268 of the Code of Civil Procedure, when used with respect to the City Court, is the city as constituted prior to the last consolidation, because prior to such consolidation the territory within the city of New York embraced more than the present borough of Manhattan, and, consequently, the affidavit was insufficient on any theory.
SCOTT and McCALL, JJ., concur.
Order affirmed, with ten dollars costs and disbursements.