Uhr v. Coulter

172 A.D. 413, 158 N.Y.S. 512, 1916 N.Y. App. Div. LEXIS 5971

Opinion

Page, J.:

The plaintiff is a trustee in bankruptcy. The complaint alleges that he has been authorized to bring this action by an order of the United States District Court duly made and entered. This is denied in the moving affidavit and the statement made that such an application was made to the referee in bankruptcy, who refused to make the order unless and until he was satisfied that the condition of the bankrupt’s estate warrants the making of the order or the creditors whom the trustee represents stand ready to pay the costs of an unsuccessful suit. These statements are not denied by the trustee. _ The trustee in bankruptcy has no assets except the claim in suit, and there seems to be no prospect of his succeeding in the action. He should have been required to give security for costs. (Graham v. Aschenbach, 136 App. Div. 447.)

The order is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Clarke, P. J., Laughlin, Dowling and Davis, JJ., concurred.

Order reversed; with ten dollars costs and disbursements, and motion granted, with ten dollars costs.