Morpie v. Manhattan Brass Co.

28 Jones & S. 423, 44 N.Y. St. Rep. 834

Opinion

Per Curiam.

The defendant’s right to security for costs depended upon section 3268 Code Civ. Pro., as amended by chapter 170, Laws of 1891. It says that a defendant may require security for costs to be given where the plaintiff is, when the action was commenced, subd. 5, an infant whose guardian ad litem, had not given such security excepting as otherwise provided in §§ 459 and 469 of the act. These sections refer to the right of an infant to obtain leave to prosecute as a poor person.

As in this case it did not appear that the guardian ad litem had filed security for costs, or that the plaintiff had obtained leave to sue as a poor person, the defendant’s motion should have been granted. The order appealed from is reversed and defendant’s motion below granted, with $10 costs.