Gary v. Chambers Bros. Furriers, Inc.

103 Misc. 257

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 15, 1918
• Status: Published

Opinion

Per Curiam.

The only question presented by the briefs in this case is the power of the Municipal Court to require security for costs as regulated by sections 3268-3279 of the Code, of Civil Procedure. Section 15 of the Municipal Court Code provides that “ the rules, the practice, pleadings, forms and procedure in this court shall conform as nearly as may be ” to those of the Supreme Court. On its face this would make the provision of the sections referred to applicable to the Municipal Court. Moreover, the power to require security for costs is not merely statutory. People ex rel. Fuller v. Oneida Common Pleas, 18 Wend. 652; Swift v. Collins, 1 Den. 659; Foreman v. Campbell, 9 Ben. 472; McLaughlin v. Kipp, 82 App. Div. 413. The power exercised in the order appealed from is, therefore, to be distinguished, particularly in that respect, from that considered in Mitchell v. Schroeder, 94 Misc. Rep. 270. See also Wetzel v. Barhite, 93 Misc. Rep. 496.

We have come to this conclusion quite independently of the consideration that the order appealed from was made in conformity with rule 34 of the Municipal Court Buies, which in accordance with sections 7 and 8 of the Municipal Court Code were adopted by the board of justices and approved by the Appellate Division of the Supreme Court for the first and second departments.

It follows, therefore, as the order here considered is not one of those described in the first seven subdivisions of section 154 of the Municipal Court Code (defining appealable judgments and orders), and is not, under the 8th subdivision, an order which the court has not the power to make, this , appeal must be dismissed, with ten dollars costs to respondent.

Present: 'Bijur., Finch: and Mullan, JJ.

Appeal dismissed, with costs.