Mowbray v. Sheldon

Appellate Division of the Supreme Court of New York

Mowbray v. Sheldon

72 N.Y.S. 1120

Appellate Division of the Supreme Court of the State of New York·Decided November 8, 1901·Published

Opinion

VAN BRUNT, P. J.

The ground upon which this order was made seems to have been that the suit was vexatious. It is sought to sustain the order by claiming that the plaintiff is the ‘trustee of an express trust, but an examination of the pleadings fails to disclose any ground upon which such a position can rest. The action seems to be an action for damages, and nothing else. Under these circumstances, the court was without authority to make an order requiring the plaintiff to file security for costs. The order must be reversed, with $10 costs and disbursements, and the motion denied.

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VAN BRUNT, P. J.

The ground upon which this order was made seems to have been that the suit was vexatious. It is sought to sustain the order by claiming that the plaintiff is the ‘trustee of an express trust, but an examination of the pleadings fails to disclose any ground upon which such a position can rest. The action seems to be an action for damages, and nothing else. Under these circumstances, the court was without authority to make an order requiring the plaintiff to file security for costs. The order must be reversed, with $10 costs and disbursements, and the motion denied.

Mowbray v. Sheldon, 72 N.Y.S. 1120 (N.Y. Ct. App. 1901).

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