Gilbert v. 503-507 West 177th Street Corp.

186 Misc. 78, 58 N.Y.S.2d 690, 1945 N.Y. Misc. LEXIS 2501

Opinion

Hofstadter, J.

Defendant moves to compel plaintiff, a nonresident administratrix, to post security for costs. Such a motion may be made at any stage of the action (Civ. Prac. Act, § 1522). Plaintiff urges that under section 1523 of the Civil Practice Act the court has discretion to grant security for costs where a legal representative of an estate is concerned. The only basis for exercising such discretion is plaintiff’s assertion of laches on part of the defendant. Plaintiff does not show whether there is any property in this State belonging to the estate of the decedent. Insufficient facts to warrant an exercise of discretion are presented (see Masterson v. Lesnau, 40 N. Y. S. 2d 920). However, I do not believe that section 1523 makes it discretionary for the court to grant security for costs where non-residence is shown. Section 1523 concerns itself with the capacity of the legal representative as such, and not with non-residence (Maresca v. Prudential Ins. Co. of America, 255 App. Div. 865). The provisions of section 1522 of the Civil Practice Act apply to an administratrix who is a nonresident (Schmalz v. Crow Construction Co., 146 App. Div. 623). The motion is therefore granted. Settle order pursuant to section 1524 of the Civil Practice Act.