Majority
p. 739(23 Civil Proc. R. 238.) LAFRENTZ v. MASS. (Common Pleas of New York City and County, Special Term. October 12, 1893.)
Headnote
Security for Costs—When Required.Under Code Civil Proc. § 3273, which provides, that in certain eases, defendant may require security for “all costs which might be awarded to him in the action,” security may be required, in any of the specified cases, though plaintiff has already given an undertaking to secure the costs which may be awarded to defendant by reason of an order of arrest theretofore granted, as provided by section 559.
Action by Charles Lafrentz, an infant, by Julius Lafrentz, Ms guardian ad litem, against Charles Mass. Defendant was arrested at the commencement of the action, and plaintiff gave an undertaking to pay costs, as required by Code Civil Proc. § 559, relating to arrests in civil cases. Afterwards, on defendant’s motion, plaintiff was required to give an undertaking or make a deposit as security for costs, on the-ground that plaintiff was an infant. Plaintiff now motions to vacate such order.
Denied.
Robert J. Robeson, for plaintiff.
Joseph Stiner and Alfred & Charles Steckler, for defendant.
A comparison of section 559 of the Code with section 3273 shows the distinction between an undertaking as security for costs under the latter section, and the undertaking upon arrest undér the former. The undertaking upon which plaintiff
p. 740
relies for the purposes of this motion is in the usual form, and follows the words of section 559, viz. “all costs which may be awarded to the defendant * * * by reason of the order of arrest," while section 3273 requires security for all costs which may be awarded to him in the action. The costs for which security has already been given herein are not the costs of the action, but only the costs which may be awarded to the defendant as accruing from, or necessitated by, his arrest. Sutorius v. North, 13 N. Y. Supp. 557 . See, also,, upon the distinction above noted, Sperry v. Hellman, Id. 899. Motion denied, with $10 costs. Plaintiff’s guardian ad litem .to comply within 10 days with the terms of the order of September 18th, directing security for costs to be given.