Bolles v. Duff

17 Abb. Pr. 448

• Court: New York Supreme Court
• Decided: March 15, 1864
• Status: Published

Opinion

By the Court.—Clerke, J.

An order of a court, requiring a party to an action, acting in a representative capacity, to give security for costs, is discretionary. (Code, § 317.) Therefore, on the merits, the order requiring the plaintiff in this action to give security for costs is not appealable, and it is only on the ground of irregularity in procuring or granting it that we can interfere. It is contended by the counsel for the plaintiff, that as the court at special term, held by another judge, granted an order allowing the plaintiff to commence and perfect this action, that this exonerated him from all liability for costs, and debarred the defendants from subsequently applying for an order requiring him to give security for the same; and that such subsequent order is a reversal of the previous order. This, I think, is not strictly correct.

The first order was ex parte, and not conclusive. It was granted on the petition of the receiver, without giving the defendants any opportunity of being heard, and was revocable on motion, on due notice to the plaintiff, and on hearing both parties. The first order, like the, second, was discretionary; and as it was, therefore, not appealable, the defendants would have no remedy, if it could not be modified or. revoked by a subsequent order of the court. If this could not be done, receivers could, nearly in every case, commence reckless and oppressive actions, without any danger of liability; for they can, very generally, on their own ex-parte petition, when duly verified, obtain an order allowing them to commence an action; and as I have said, if this be deemed conclusive, they can always escape liability for mismanagement or bad faith in commencing or conducting the action.

The appeal should be dismissed, with costs.

Leonard and Sutherland, JJ., concurred.