Kamermann v. Eisner & Mendelson Co.

22 Misc. 554, 49 N.Y.S. 1111

• Court: City of New York Municipal Court
• Decided: February 15, 1898
• Status: Published

Opinion

Schuchman, J.

The order directing the pláintiff to filé security for costs was made ex parte. This was irregular. The irregularity is specified , in subdivision 6 of the moving papers. The order was, therefore, properly vacated. Under section, .326.8 of the Code, the defendant as an absolute right, may require the plaintiff to file security for costs, and under section 3272 the court must, in that case, make the order and can make it ex parte. When, however, the application is made under section 3271 which reads:

“ In an action brought by * * * a person expressly authorized by statute to sue- * * * ’the court may, in its discretion, require the plaintiff to give security for costs * * . *” then it must be made, on notice of motion, to the court. The plaintiff herein is a person expressly authorized by statute to sue (section 468), and this case falls, therefore, within section 3271. Wood v. Blodgett, 49 Hun, 64; Swift v. Wheeler, 46 id. 580; Healy v. Twenty-third St. R. R. Co., 1 Civ. Pro. 15; Ryan v. Potter, 4 id. 80.

Order appealed from affirmed, with $10 costs and disbursements.

O’Hwyeb, J., concurs. ' ■. *

Order affirmed, with $10 costs and disbursements.