Clarendon v. Milliken Bros.

101 N.Y.S. 1105

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 11, 1907
• Status: Published

Opinion

JENKS, J.

I agree with Barrett, J., in Pursley v. Rodgers, 44 App. Div. 139; 61 N. Y. Supp. 1015, that this plaintiff was not required absolutely to give security for costs under section 3368 of the Code of Civil Procedure. Under section 3371 of that Code it was a matter of discretion with the court, and I think that its order should not be disturbed, inasmuch as it is within the rule which we laid down in McNeil v. Merriam, 57 App. Div. 164, 68 N. Y. Supp. 165, and Davidson v. Bosé, 57 App. Div. 212, 68 N. Y. Supp. 316, 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 parly proceeding without the guaranty provided for by the Code.”

See, too, 2 Nichols’ New York Practice, p. 1891, and authorities cited.

McNeil’s Case, supra, is cited with approval in Gmaehle v. Rosenberg, 80 App. Div. 542, 80 N. Y. Supp. 705.

The order is affirmed, with $10 costs and disbursements. All concur.