McDougal v. Gray

4 N.Y.S. 74

• Court: New York Supreme Court
• Decided: October 15, 1888
• Status: Published

Opinion

Smith, J.

This action was brought to construe a will. Some of the defendants procured an order ex parte that the plaintiff give security for costs. This is a motion to vacate that order. The plaintiff appears in the complaint both individually and as executor. The case, therefore, stands as though there were two plaintiffs,—one, the individual; the other, the executor. If security for costs can be obtained in such a case, under section 3268 of the Code, then the order was properly granted ex parte. If security, from a nonresident executor, however, can only be obtained under section 3271, then the order could only be granted by the court, and was improperly granted, inasmuch as, under section 3270, security for costs cannot be required under section 3268, unless it can be required from both plaintiffs. The question, then, resolves itself into the single question: An executor, non-resident, appointed within this state, brings an action againt a resident defendant. Can he be required to give security for costs, under section 3268? He is not personally liable for costs, except where guilty of misconduct or bad faith. The estate which he represents is within the control of the courts of this state. His non-residence is, therefore, not any reason for requiring security for costs. Hall v. Waterbury, 5 Abb. N. C. 356. The motion to vacate the order must therefore be granted, with $10 costs.