Ridgway v. Symons

14 Misc. 78, 35 N.Y.S. 197, 25 N.Y. Civ. Proc. R. 23, 69 N.Y. St. Rep. 552

Opinion

.Beekman, J.

This is a motion to vacate an order requiring the plaintiff to give security for costs. The order was made ex parte. The granting , of such an order against a receiver rests in the discretion of the court, and the power will be

exercised, under well-settled principles, only where it appears not only that the receiver is without funds applicable to the payment of costs, but also that the action has been brought in bad faith or heedlessly, or without reasonable prospect of success. Bennett v. Goble, 43 Hun, 354 ; Rutherford v. Town of Madrid, 77 id. 545; Hale v. Mason, 86 id. 499. The plaintiff has* brought this action by permission of the court. The charge that he has done so to harass and annoy the defendant is hardly sufficient upon which to base a finding of bad faith in the absence of satisfactory evidence to that effect. Nor am I prepared to. hold, upon the papers submitted to me, that the plaintiff has no reasonable prospect of success in the action. In view of the above considerations the the order should not have been granted. But there is another objection which affects its validity. The application was necessarily made under section 3271 of the Code of Civil Procedure. An order under that section must be made by the court; it cannot be made by a judge. § 3272, Code Civ. Proe. The order in question was riot a court order and was, therefore, invalid.

Motion granted, with costs to abide the event.