Majority
p. 256Blanchard and others vs. Nessle. The next friend is liable for costs, and there is no suggestion that he is not abundantly able to pay. (Dalrymple v. Lamb, 3 Wend. 424 .) The application should have been made to a judge at chambers.
Headnote
Under 2 R. S. 760, § 1, a person sued by an infant whose next friend has not filed security for costs, has a right to require such security, though it appear that the next friend is abundantly able to pay.The application to compel the filing of security may be made directly to the court, on notice, without previously applying to a judge at chambers.
M. T. Reynolds, for the defendant,
on an affidavit that the plaintiffs were infants, and that their next friend had not given security for the payment of costs, moved that all proceedings on the part of the plaintiffs be stayed until such security be given.
J. McKown, contra.
The defendant is now entitled to security for costs, although the next friend of the infant plaintiff may be abundantly able to pay. ( 2 R. 8 . 620, § 1.) Application may he made to a judge at chambers for an order to file security, or show cause; or the application may be made to the court in the first instance, on notice. (Champlin v. Pierce, 3 Wend. 445 .) The motion is regular.
Motion granted.
Cases cited
- Champlin v. Pierce 3 Wend. 445 p. 256