Kliger v. Rosenfeld

144 A.D. 571, 129 N.Y.S. 782, 1911 N.Y. App. Div. LEXIS 4190

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 19, 1911
• Status: Published

Opinion

Scott, J.:

The plaintiff appeals from two orders, which are so related that they may, conveniently, be considered together.

The first order requires the plaintiff to give additional security for costs, and the second dismisses his complaint for failure to give such additional security.

The action is one for the dissolution of a copartnership with an incidental receivership and accounting. The answer asserted that the copartnership had already been dissolved, and that .there had been an accounting. The cause came on for trial at Special ■ Term, and an interlocutory judgment was entered in plaintiff’s favor, the partnership dissolved, the plaintiff’s costs and disbursements being ordered to be taxed upon entering final judgment. An accounting was ordered before a referee appointed for that purpose., and the defendant Rosenfeld was appointed receiver of the copartnership assets. Much litigation followed between the parties, not only over the partnership accounts, but also in an intermediate involuntary accounting by the receiver, the expenses incurred by each party apparently greatly exceeding any probable amount of copartnership assets. It would serve no useful purpose to recount this litigation in detail. The plaintiff is a non-resident and at the- outset gave statutory' security for costs. Later he was required to give'additional security to the amount of $750. The order now appealed from requires him to give still further security, which is asked for on the ground that one of the sure- ' ties on the former bond has become of doubtful solvency, and that the costs, which the defendant confidently assumes will be awarded to him, have reached a large sum. It is difficult to perceive upon what defendant rests his supreme confidence that costs must ultimately be awarded to him. The interlocu- • tory decree went against him and awarded costs to plaintiff (Code Civ. Proc. § 1231), and the only report that has yet been made charged the defendant receiver with a large sum of money, and although that report was set aside for errors in the reception of evidence, it by no means follows that the receiver was chargeable with nothing. And even if respondent should hereafter, by any means, be awarded costs against plaintiff it is not certain that they will be nearly so large as he now claims. On the whole we think that the respondent failed to make out a proper case for the requirement that plaintiff should give further security for costs. This conclusion, of course, necessitates the reversal of the second order dismissing the complaint for failure to give additional security. That order, however, could not stand, even if the order for. additional security were to be affirmed. It was made under the authority of section 3277 of the Code of Civil Procedure which provides that: “Where the plaintiff fails to comply with an order made as prescribed in this title, or to procure the allowance of an undertaking given pursuant to such an order, the defendant is entitled to a judgment dismissing the complaint, and in his favor for costs.” This section cannot, in the nature of things, be applied to a case like the present when an interlocutory judgment has been made determining the issues in the action and settling the rights of the parties. The penalty of dismissal can only be applied when the default is made prior to judgment. After that thó order can be enforced only by a stay of proceedings. (Gifford v. Rising, 14 Civ. Proc. Rep. 174.)

Both of the orders appealed from must he reversed and both motions denied, with ten dollars costs and disbursements of the appeal, and ten dollars costs of motion as to each.

Ingraham, P. J., Clarke, Miller and Dowling, JJ., concurred. '

Orders reversed, with ten dollars costs and disbursements, and motions denied, with ten dollars costs.