Berkowitz v. Arc Boiler & Welding Co.

5 A.D.2d 879, 172 N.Y.S.2d 777, 1958 N.Y. App. Div. LEXIS 6617

Opinion

In an action to recover a balance alleged to be due for services rendered, the appeal is from an order denying a motion to require respondent to give security for costs pursuant to sections 1522 and 1524 of the Civil Practice Act. Order reversed, with $10 costs and disbursements, motion granted, and matter remitted to the Special Term for further proceedings not inconsistent herewith. A defendant is entitled to security for costs where, as here, after the commencement of the action, the plaintiff is adjudicated a bankrupt (Civ. Prac. Act, § 1522, subd. B, par. 6). Obviously, the obligation falls on the trustee as successor plaintiff in the action, which remains the same despite the appointment (Van der Stegen v. Neuss, Hesslein & Co., 270 N. Y. 55, 61).

Nolan, P. J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.