Clarendon v. Milliken Bros. — 116 A.D. 930

Majority

p. 930

Carrie J. Clarendon, as Administratrix, etc., of William S. Clarendon, Deceased, Respondent, v. Milliken Brothers, Inc., Appellant.

Headnote

Costs — discretion of court in requiring security therefor.

" Appeal by the defendant from an order of the Supreme Court, entered in the office of the clerk of the county of Richmond on the 17th dajr of October, 1906.

I agree with Barrett, J., inz Pursley v. Rodgeis ( 44 App. Div. 139 ) that this plaintiff was not required absolutely "to give security for costs under section 3268 of the Code of Civil Procedure. Under1 section 3271 of that.Code it was a matter of discretion with the court, and I think that its order should not t be disturbed inasmuch as it is within tfie rule which we laid down in McNeil v. Merriam ( 57 App. Div. 164 ) and Davidson v. Bose (Id. 212), per Woodward, J.: “ The court is not justified in extending its discretion to a case of this character, unless it is manifest that there is bad faith involved or some other serious objections to the party proceeding without the guaranty- provided for by the Code.” (See, too, 2 Rich. N. Y. Pr. 1891, and authorities cited.) McNeil's Case (supra) is cited with approval in Gmaehle v. Rosenberg ( 80 App. Div. 542 ). The order is affirmed, with ten dollars costs and disbursemenls. Woodward, Hooker, Gaynor and Rich, JJ., concurred. Order affirmed, with ten dollars costs and disbursements. . -

Cases cited

Pursley v. Rodgers 44 App. Div. 139 N.Y. App. Div. 1899-11-10 p. 930
McNeil v. Merriam 57 App. Div. 164 N.Y. App. Div. 1901-01-25 p. 930