Murphy v. Travers

60 How. Pr. 301

Opinion

This action was brought by the plaintiff,, as legatee under the will of John Morrissey, deceased, she' being the sister and one of the heirs-at-law of said deceased. The plaintiff sued for an accounting by the executors, claiming that the real. estate of deceased was chargeable with the payment of legacies, and that in consequence of the inadequate jurisdiction of the surrogate’s court, her only remedy was by resort to a court of equity.

The defendants moved, on an affidavit alleging the want of pecuniary responsibility on the part of plaintiff, and her inability for that reason to pay costs, that she be required to give security for costs in the sum of $1,000. The plaintiff, in opposition to the motion, contended that as the action was brought in good faith, which was not disputed by defendants, and as the granting of the motion was in discretion, under section 3271, the plaintiff should not be required to give the security asked, and cited Darby agt. Condit (1 Duer, 599); Shepherd agt. Burt (3 Duer, 645), and Kimberly agt. Stuart (22 How., 281).

Held, Donohue, J., that the motion should be granted,' with ten dollars costs.