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Feitelson v. Moser

173 A.D. 93 Court First Department, Decision date 1916-06-02 English

Delivered by Scott, J.:

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p. 93
Louis Feitelson, as Trustee of the Carusa Feather Co., Inc., Bankrupt, Appellant, v. Max Moser, Respondent, Impleaded with J. William Ostrow and Samuel Moser, Defendants.
First Department,
June 2, 1916.

Headnote

Costs — security—undertaking should be for benefit of all defendants.
Security required of a plaintiff on a cause of action arising before his adjudication in bankruptcy should be given not to secure one defendant only, but for the benefit of all defendants. There should be only one undertaking for costs running in favor of all defendants.
Appeal by the plaintiff, Louis Feitelson, as trustee, 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 1th day of April, 1916, denying his motion to vacate an order entered on the 21th day of March, 1916, requiring him to give security for costs herein.
Joseph Joffe, for the appellant.
H. Louis Jacobson, for the respondent.

We are of opinion that the cause of action upon which the plaintiff sues is one which arose before the adjudication in bankruptcy. It was, therefore, a proper case for an ex parte order for security. The order, however, requires such security to be given only to secure one defendant. It should require such security for the' benefit of the defendants, and thus preclude demands for separate security for each defendant. It is the practice in this department to require, in a case like the present, only one undertaking for costs running in favor of all , the defendants. (Leftwick v. Clinton, 26 How. Pr. 26 ; Rothchild v. Wilson, 10 N. Y. Supp. 61 ; Perrin v. Whipple, 118 id. 1048.) If the defendants are of opinion that an undertaking for $250 is not sufficient, it is open to them to move, on notice,, for further security.

The order appealed from will be reversed, and the motion

p. 94
granted to the extent of modifying the order for security for costs in accordance with this opinion, with ten dollars costs and disbursements to the appellant.

Clarke, P. J., Dowling, Smith and Page, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted to extent stated in opinion. Order to be settled on notice.

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