Dunne v. American Surety Co.

58 N.Y.S. 140, 29 N.Y. Civ. Proc. R. 59

Opinion

BISCHOFF, Jr., J.

Plaintiff, a nonresident, brought this action in his representative capacity, as an administrator, appointed within the state, and a court order for security for costs was procured (ex parte) by the defendant. The motion is to vacate that order. That the order was granted ex parte does not present a ground of invalidity. True, it was not to be demanded as of right, under section 3268 of the Code, since the plaintiff’s nonresidence was not material, the action being brought by him as administrator (McDougal v. Gray, 15 Civ. Proc. R. 237, 4 N. Y. Supp. 74; Hall v. Waterbury, 5 Abb. N. C. 356); and the matter was addressed to the discretion of the court, under section 3271. In such a case, the order must be a court order (Code, § 3272; Ridgway v. Symons, 14 Misc. Rep. 78, 35 N. Y. Supp. 197), as this order was, but it may be made without notice, and still be valid as a matter of law (Churchman v. Merritt, 50 Hun, 270, 2 N. Y. Supp. 843). Upon the merits, however, I think that security should not be required, the action being evidently brought in good faith, and not without announced authority. See Bischoff v. Engel, 10 App. Div. 240, 41 N. Y. Supp. 815; Scharmann v. Schoell, 23 App. Div. 398, 48 N. Y. Supp. 306. The fact that the plaintiff is a nonresident is not a ground for this order, as I have said, since he is not chargeable personally for costs except in event of his misconduct (cases supra); nor is security to be called for merely upon the ground that the estate might be insufficient to satisfy a judgment for costs, where the action is not without merit, and is prosecuted with a reasonable prospect of success. Rutherford v. Town of Madrid, 77 Hun, 545, 28 N. Y. Supp. 923; Fagan v. Strong, 19 Civ. Proc. R. 88, 11 N. Y. Supp. 766.

Motion to vacate granted, with $10 costs.