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Gary v. Chambers Bros. Furriers, Inc.

103 Misc. 257 Court N.Y. App. Term English

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p. 257
Margaret Gary, Appellant, v. Chambers Bros. Furriers, Inc., Respondent.
(‘Supreme Court, Appellate Term, First Department,
April, 1918.)

Headnote

Appeal—what not appealable — motions and orders — security for costs—Municipal Court Rule 34 — Municipal Court Code, § 154.
An order denying a motion to vacate an ex parte order requiring the plaintiff in an action brought in the Municipal. Court of the city of New York to give security for costs, made
p. 258
in conformity with míe 34 of the Municipal Court Buies, is not appealable.
Such an order is not one of those described in the first seven subdivisions of section 154 of the Municipal Court Code defining appealable judgments and orders, and is not under subdivision 8 of said section an order which the court is without power to make.
Appeal by plaintiff from an order of the Municipal Court of the city of New York, borough of Manhattan, ninth district, denying plaintiff’s motion to vacate an ex parte order requiring plaintiff to give fifty dollars as security for costs because of the plaintiff’s non-residence in the state.
Arthur Frank, for appellant.
Bernard Chambers, for respondent.

The only question presented by the briefs in this case is the power of the Municipal Court to require security for costs as regulated by sections 3268-3279 of the Code, of Civil Procedure. Section 15 of the Municipal Court Code provides that “ the rules, the practice, pleadings, forms and procedure in this court shall conform as nearly as may be ” to those of the Supreme Court. On its face this would make the provision of the sections referred to applicable to the Municipal Court. Moreover, the power to require security for costs is not merely statutory. People ex rel. Fuller v. Oneida Common Pleas, 18 Wend. 652 ; Swift v. Collins, 1 Den. 659 ; Foreman v. Campbell, 9 Ben. 472 ; McLaughlin v. Kipp, 82 App. Div. 413 . The power exercised in the order appealed from is, therefore, to be distinguished, particularly in that respect, from that considered in Mitchell v. Schroeder, 94 Misc. Rep. 270 . See also Wetzel v. Barhite, 93 Misc. Rep. 496 .

p. 259
We have come to this conclusion quite independently of the consideration that the order appealed from was made in conformity with rule 34 of the Municipal Court Buies, which in accordance with sections 7 and 8 of the Municipal Court Code were adopted by the board of justices and approved by the Appellate Division of the Supreme Court for the first and second departments.

It follows, therefore, as the order here considered is not one of those described in the first seven subdivisions of section 154 of the Municipal Court Code (defining appealable judgments and orders), and is not, under the 8th subdivision, an order which the court has not the power to make, this , appeal must be dismissed, with ten dollars costs to respondent.

Present: 'Bijur., Finch: and Mullan, JJ.

Appeal dismissed, with costs.

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