Murphy v. Manhattan Brass Co. — 18 N.Y.S. 207

Majority

p. 207

Murphy v. Manhattan Brass Co.

(Superior Court of New York City,

General Term.

March 14, 1892.)

Headnote

Security por Costs—Action by Infant.

Where an action was brought by an infant by guardian ad litem, who had not given security for costs, instead of obtaining leave to sue as a poor person, (Code Civil Proc. N. Y. § 3268, as amended by Laws 1891, c. 170,) the court erred in denying defendant’s motion that plaintiff file security for costs.

Appeal from special term.

Action by John Murphy, by guardian ad litem, against the Manhattan Brass Company. From an order denying its motion that plaintiff file security for costs, defendant appeals.

Reversed.

Argued before Sedgwick, C. J., and Dugro and Gildersleeve, JJ.

William G. Lathrop, Jr., for appellant. Adam Finch, for respondent.

The defendant’s right to security for costs depended upon section 3268, Code Civil Proc., as amended by chapter 170, Laws 1891. It says that a defendant may require security for costs to be given where the plaintiff was, when the action was commenced, (subdivision 5,) an infant whose guardian ad litem had not given such security, except as otherwise provided in sections 459 and 469 of the act. These sections refer to the right of an infant to obtain leave to prosecute as a poor person. As in this case it did not appear that the guardian ad litem had filed security for cost, or that the plaintiff had obtained leave to.sue as a poor person, the defendant’s motion should have been granted. The order appealed from is reversed, and defendant’s motion below granted, with $10 costs.