Clarendon v. Milliken Bros.

116 A.D. 930

Opinion

Jerks, J. :

I agree with Barrett, J., inz Pursley v. Rodgeis (44 App. Div. 139) that this plaintiff was not required absolutely "to give security for costs under section 3268 of the Code of Civil Procedure. Under1 section 3271 of that.Code it was a matter of discretion with the court, and I think that its order should not t be disturbed inasmuch as it is within tfie rule which we laid down in McNeil v. Merriam (57 App. Div. 164) and Davidson v. Bose (Id. 212), per Woodward, J.: “ The court is not justified in extending its discretion to a case of this character, unless it is manifest that there is bad faith involved or some other serious objections to the party proceeding without the guaranty- provided for by the Code.” (See, too, 2 Rich. N. Y. Pr. 1891, and authorities cited.) McNeil's Case (supra) is cited with approval in Gmaehle v. Rosenberg (80 App. Div. 542). The order is affirmed, with ten dollars costs and disbursemenls. Woodward, Hooker, Gaynor and Rich, JJ., concurred. Order affirmed, with ten dollars costs and disbursements. . -