Tracy v. Dolan — 31 A.D. 24

Majority

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Alberta P. Tracy and Robert C. Davey, as Executors, etc., of William L. Evans, Deceased, Respondents, v. Annie Dolan and Others, Appellants.

Headnote

Additional security for costs required of a non-resident plaintiff where the surety is insolvent.

Where a non-resident plaintiff and the surety upon the undertaking given to secure the costs of the action both die, and it appears that the estate of the surety is insufficient to secure the payment of the amount specified in the undertaking, the defendant is entitled, under section 3276 of the Code of Civil Procedure, to an order requiring the non-resident executors of the original plaintiff, who have been substituted as plaintiffs, to give additional security for costs.

Appeal by the defendants, Annie Dolan 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 15th day of March, 1898, denying their motion to compel the plaintiffs to give an additional security for costs.

Campbell E. loelte, for the appellants'.

Nelson Siiipmcm, for the respondents.

This action was commenced in October, 1894, for the partition of certain real estate. On the seventh of November following, the defendants having made a motion for that purpose, the plaintiff, a non-resident, gave security for costs by filing an undertaking with one surety. In August, 1897, the plaintiff died, and by an order duly made the action was revived and continued in the name of his executors, both of whom were then and now are non-residents. On January 27, 1898, the surety upon the undertaking filed died, and from the facts stated in the moving papers it may fairly be inferred that his estate is insufficient to secure the payment of the amount specified in the undertaking. Under these circumstances the defendants made a motion to compel the plaintiffs to give additional security for costs. The motion was denied and the defendants appealed.

We think the motion should have been granted. Section 3276 of the Code of Civil Procedure expressly provides that “ at any time

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after the allowance of an undertaking * "x" * the court or a judge thereof, upon satisfactory proof by affidavit that the sum specified in the undertaking * * * is insufficient, or that one or more of the sureties lime died or become insolvent, or that his or their circumstances have become so precarious that there is reason to apprehend that the undertaking is insufficient for the security of the defendant, must make an order requiring the plaintiff to give an additional undertaking * * * ” The death of the only surety upon the undertaking filed was not denied, nor was there any denial of the allegation in the moving papers which indicated the insolvency of his estate. Facts were thus sufficiently established to entitle the defendants to an additional undertaking.

It follows that the order appealed from should he reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, requiring plaintiffs to furnish an additional undertaking in the sum of seven hundred and fifty dollars.

Barrett, Rumsey and Ingraham, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, requiring plaintiffs to furnish additional undertaking in the sum of seven hundred and fifty dollars.