Davidson v. Bose — 57 A.D. 212

Majority

p. 212

Fanny Davidson, as Administratrix, etc., of James Davidson, Deceased, Appellant, v. John N. Bose, Respondent.

Headnote

Security for costs—proof of plaintiff’s non-residence — what proof is required, in the case of an administratrix.

Upon n motion made to require the plaintiff in an action to .recover damages for the negligent killing of her intestate to give security for costs, an affidavit of a clerk in the office of the defendant’s attorney stating that he made inquiry concerning the whereabouts of the plaintiff at a certain house in New York city, and that the owner thereof informed him that the plaintiff formerly . resided there, but had gone to reside with her brother in Manchester, New Hampshire, is not sufficient to support ah order requiring the .plaintiff :to give security for costs upon the ground that she is a non-resident.

It seems, that the plaintiff should not be required to file security for costs under section 3271 of the Code of Civil Procedure in the absence of evidence of bad faith or of some other serious objection.

Appeal by the plaintiff, Fanny Davidson, as administratrix, etc., of James Davidson, deceased, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11th day of December, 1900, requiring and directing her to pay into court the sum of $250, ■ to be applied to the payment of the costs, if any, awarded against her as such administratrix, or at her election to file with the clerk of this court an undertaking, to be executed to the defendant with one . or more sureties, to the effect that she will pay all costs which may be awarded to him in the action, not .exceeding $250.

Thomas F. Murtha, for the appellant.

Andrew F. Van Thun, Jr., for the respondent.

The action was brought under the provisions of section 1902 of the Code of Civil Procedure for damages for the loss of the life of plaintiff’s husband, through the alleged negligence of the defendant. A motion was made at Special Term, upon affidavits,' to require the plaintiff administratrix to give security for costs in the action. It is not disclosed in the moving papers whether the defendant is proceed- . ing under section 3271 of the Code of Civil Procedure, which pro

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vides for giving security for costs by executors and administrators, or under the section providing for the giving of security for costs by non-residents. (§ 3268.) Upon the argument his counsel contended that he was proceeding under both.

The only evidence in the moving papers of the non-residence of the plaintiff is to be found in the affidavit of one Grady, a clerk- in the office of the defendant’s attorney, who swears,- “ that on the 3d day of December, 1900, at 1125 St. Marks avenue, Brooklyn, New York City, he called upon Mrs. Augusta V. Smith, who is the owner of said premises, and made inquiry concerning the whereabouts of Fanny Davidson, the plaintiff in this action ; that he was informed by said Augusta V. Smith that said Fanny Davidson formerly resided at said address and resided there until the last week of September, 1900; that said Fanny Davidson then left and went to . reside with her brother at No. 452 Merrimac street, Manchester, New Hampshire.”

It will hardly require discussion to determine that this affidavit contains none of the elements of legal evidence, and is not a proper basis of an order to give security for costs on the ground that the plaintiff is a non-resident.

'As to the propriety of requiring an administratrix to file security under section 3271 of the Code, this court, in the case of McNeil v. Merriam ( 57 App. Div. 164 ), has held that “ 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.” There i no evidence of bad faith in this case, but, on the contrary, the plaintiff in her complaint states a meritorious causé of action, which is as yet undisputed, even by an answer.

The order appealed from should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Cases cited

McNeil v. Merriam 57 App. Div. 164 N.Y. App. Div. 1901-01-25 p. 213