Uhr v. Coulter — 172 A.D. 413

Majority

p. 413

Philip E. Uhr, as Trustee in Bankruptcy of the Estate of Samuel Wilfand, Respondent, v. David Coulter and Others, Appellants.

First Department,

April 20, 1916.

Headnote

Costs —suit by trustee in bankruptcy—.security.

Where a trustee in bankruptcy has no assets except a claim upon which he is about to bring an action, and there seems to be no prospect of his succeeding, he should be required to give security for costs. ■

Appeal by the defendants, David Coulter and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of July, 1915, denying a motion to require the plaintiff to give security for costs.

Paul M. Crandell, for the appellants.

--, for the respondent.

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.