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Schmidt v. Eiseman

26 N.Y.S. 766 Court Brooklyn City Ct. Decision date 1893-12-26 English

Delivered by Clement, C. J.

Contents

Majority

p. 766
(6 Misc. Rep. 264.)
SCHMIDT v. EISEMAN.
. (City Court of Brooklyn, General Term.
December 26, 1893.)

Headnote

Security por Costs—Action against Executor.
A refusal of the court to require security for costs in an action against the executor (Code Civil Proc. § 3271) is not an abuse of discretion where the complaint states a good cause of action, and is sustained by affidavit made by plaintiff of her own knowledge.
Appeal from special term. '
Action by Magdalena Schmidt against Peter Eiseman, as executor, to recover for labor and services. From an order denying a motion to' require to for defendant peals.
Affirmed.
Argued before CLEMENT, C. J., and VAN WYCK, J.
Jackson & Burr, for appellant.
Chas. J. Patterson, for respondent.

This action was brought to recover for labor and services alleged to have been performed for Gertrude Scher, of whose estate the defendant is executor. Defendant applied at special term for an order requiring the plaintiff to give security for costs, under Code, § 3271. The motion was denied, and an,appeal was thereupon taken. Security for costs, under this section, may be granted or refused, in the discretion of the court, although there is no proof of bad faith. Tolman v. Railroad Co., 92 N. Y. 353 . The counsel for appellant invokes the rule suggested in Caccavo v. Railroad Co., (Super. N. Y.) 13 N. Y. Supp. 884 , that, if poverty is conceded, the party must satisfy the court that a good cause of action is set forth. Assuming the correctness of the rule, we think that the plaintiff in this case did show a fair probability of a recovery. In the case cited the allegations in the complaint were made on information and beliéf, and the sources of the information were not set forth; and in the case before us the plaintiff states in her complaint a good cause of action, and sustains the samé by an affidavit,' which must have been made of her own knowledge. The discretion in the court below has not been abused. Order affirmed, with $10 costs and disbursements, to be taxed by the clerk

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