Gates v. McDonald — 14 N.Y.S. 907

Majority

p. 907

Gates et al. v. McDonald et al.

(Supreme Court, General Term, First Department.

June 12, 1891.)

Headnote

Costs—Security—Several Defendants.

An- order requiring plaintiñs to give security for costs in the sum of $250 for the benefit of defendants exhausts, so far as the original application is concerned, the power conferred on the court by Code Civil Proc. N. Y. § 3272, which provides that, “where security for costs is required to be given, the court * * * must make an order requiring the plaintiff, ” either to pay $250 into court, or to give an undertaking in that sum, and such order will not be disturbed on the ground that the amount is insufficient to secure all the defendants.

Appeal from special term, New York county.

Action by Albert W. Gates and others against Willard W. McDonald and others. On the motion of defendant Henry M. McDonald, an order was granted that plaintiffs give, for the benefit of such defendant, security for the costs in the sum of $250. Afterwards an order was made vacating the order in favor of Henry M. McDonald, and directing “that the plaintiffs be, and they hereby are,'required, within two days from the entry of this order, either to pay into court the sum of two hundred and fifty dollars, to be applied to

p. 908

the payment of the costs, if any, awarded against them, or, at their election, to file with the clerk of this court an undertaking to be executed to the defendants by one or more sureties, to the effect that plaintiffs will pay, upon ■demand, to the defendants, all costs which may be awarded to them, or any of ■them, in the action, not exceeding the sum specified in the undertaking, which must be at least two hundred and fifty dollars.” Defendants appeal. Code Civil Proc. N. Y. § 3272, provides as follows: “Where security for costs is required to be given, the court in which the action is pending, or. except ■in a case specified in the last section, a judge thereof, upon due proof, by affidavit of the facts, must make an order requiring the plaintiff, within a time •specified, either to pay into court the sum of two hundred and fifty dollars, to be applied to the payment of the costs, if any, awarded against him, or, at his election, to file with the clerk an undertaking, and to serve a written notice of the payment or of the filing upon the defendant’s attorney, and staying all other proceedings on the part of the plaintiff, except to review or vacate the order, until the payment of filing, and notice thereof, and also, if an ■undertaking is given, the allowance of the same.”

Argued before Van Brunt, P. J., and Patterson, J.

Wales F. Severance, for appellant W. W. McDonald. Henry Yonge, for appellant H. M. McDonald. Hornblower & Byrne, (James Byrne, of counsel,) for respondents.

Section 3272 of the Code empowers the court in the first instance to grant simply an order for an undertaking in the sum of $250, or a ■deposit of that amount as security for costs. That section was complied with by the order which was made in the court below, and the power of the court was then exhausted, so far as the original application was concerned. We think, therefore, that the order appealed from should be affirmed, with $10 ■costs and disbursements.